Posted October 15, 2013
In Simpson v. Kroger Corp. et al., No. B242405, 2013 WL 5347881, Cal. Ct. App. (September 25, 2013), the California Court of Appeals affirmed the dismissal of a consumer class action at the pleadings stage against Challenge Dairy Inc. and Kroger Inc., holding that the federal Food, Drug & Cosmetic Act preempted the California Milk and Milk Products Act of 1947 and that a reasonable consumer would not be misled by the labels on the products.  For a copy of the decision, please contact the National Agricultural Law Center at  For more information on food labeling issues, please visit the National Agricultural Law Center’s website, here.
In 2011, plaintiff, Mary L. Simpson, purchased a tub of Challenge “Spreadable Butter” product, but when she arrived home she realized that the product was not butter, but contained “edible oils and other ingredients.”  Id. at *1.  The plaintiff filed a complaint, alleging that a “spreadable butter” product, consisting of butter mixed with canola or olive oil was mislabeled and falsely marketed as “butter.”  Id.  The plaintiff alleged her claims under the labeling requirements of the California Milk and Milk Products Act of 1947 (Food & Agr. Code § 32501 et seq. (MMPA) and the California Sherman Food, Drug and Cosmetic Law (Health & Saf. Code § 32501 et seq.  Id.  Defendants jointly demurred on the grounds that the products were properly labeled under the MMPA and that the MMPA was preempted by the federal Food, Drug & Cosmetic Act (FDCA) (21 U.S.C. §301 et seq.).  Id. at *2.
The trial court agreed with the defendants, holding that the plaintiff’s California claims were preempted.  Id.  The trial court found that the products are “nonstandardized butter, for which there is a federal labeling requirement, but no comparable California labeling requirement.”  Id.
Analysis and Holding:
The California Court of Appeals held that the labeling requirements of the MMPA were not identical to those of the federal FDCA and were, thus, preempted.  Id. at *1.  In addition, the Court held that the plaintiff’s mislabeling claims under the CA Sherman Food, Drug and Cosmetic Act were not preempted and the trial court did not abuse its discretion when it denied plaintiff leave to amend her Sherman claims because, as a matter of law, plaintiff failed to demonstrate that a reasonable consumer would be misled by the labels on the product.  Id.
The court noted that under both the FDCA and the Sherman Law, food fall into two categories: “those for which a definition and a standard of identity has been created by federal regulation and those not identified by federal regulation.”  Id. at *2.  The court concluded that the “spreadable butter” was a nonstandardized food regulated by section 343(i) and requiring the label “to bear the common or usual name of the food, and if two or more ingredients are included, the common or usual name of each food except spices and flavorings must be on the label.”  Id
The court also concluded that the definition of “margarine” under the FDCA and the MMPA were not identical, thus the MMPA claims were preempted under the FDCA.  Id. at *8.


Citing the principle recognized in Day v. AT&T Corp., 63 Cal. App. 4th 325, 333 (1998), the court also stated that in this case the labels on the products “clearly informed any reasonable consumer that the products contain both butter and canola or olive oil” and no “reasonable person could purchase these products believing that they had purchased a product containing only butter.”  Id. at *9-10.