Posted March 5, 2014
In Lilly v. ConAgra Foods, Inc., No. 12-55921, 2014 WL 644706, (9th Cir. Feb. 6, 2014), the Ninth Circuit Court of Appeals considered a case involving the sodium content labeling on sunflower seeds.  The Court held that the Nutrition Labeling and Education Act (NLEA), 21 U.S.C. § 343 (q)(1)(D) does not preempt state consumer lawsuits under various California consumer protection statutes.  For a copy of the decision, please contact the National Agricultural Law Center at nataglaw@uark.eduFor more information on food labeling, please visit the Center’s Food Labeling Reading Room here.
Plaintiff, Aleta Lilly, filed a putative class action against Defendant, ConAgra Foods, Inc., alleging that the coating on sunflower seed shells is intended to be ingested, so the sodium content on the package label must include the sodium contained in the edible coating.  Id. at *1.  Lilly alleged that minimizing or ignoring the sodium content in the coating was misleading and violated the California Consumer Legal Remedies Act, the False Advertising Act, and the Unfair Competition Law.  Id. at *2.  ConAgra moved to dismiss, arguing that federal law expressly preempts the state law claims.  Id.  The district court agreed, ruling that requirement under California law was not identical to the requirement under federal law, and the state law claims, were thus, preempted.  Id.   Lilly appealed.  Id.
Analysis and Holding
The Ninth Circuit considered the statutory interpretation of the federal NLEA and whether the federal law preempts a state consumer lawsuit.  See id
The court noted that the NLEA requires that a food’s label include the amount of sodium “in each serving size or other unit of measure.”  Id. (quoting 21 U.S.C. § 343(q)(1)(D).  The NLEA provides that no state may “directly or indirectly establish…any requirement for the labeling of food that is not identical” to the federal requirements.  Id. (quoting 21 U.S.C. § 343-1(a)(5)).  The court also noted that the FDA’s regulations require that nutrient information must be provided for all products intended for human consumption.  Id. (quoting 21 C.F.R. §101.9(a).  In addition, the amount of sodium in the food is “based on only the edible portion of the food, and not bone, seed, shell, or other inedible component.”  Id. (quoting 21 C.F.R. § 101.12(a)(6)). 
ConAgra argued that Lilly’s lawsuit attempted to force ConAgra to include the sodium content of an inedibleportion (the seed) and since this is contrary to the federal requirement, Lilly’s claims are preempted.  Id. at *3.
The court reasoned, however, that the while the shells themselves are inedible, the coating on the shell is edible and is intended to be ingested.  Id.  As a result, the court ruled that the state law requirements were no different than the federal requirements, and were not preempted.  Id


Since the District Court never reached the issue of whether ConAgra’s failure to include the sodium content in the coating was deceptive, the Ninth Circuit reversed and remanded the case.  Id.