The Solicitor General and the FDA Argue Against Preemption in Farmed Salmon Cases

By Ricardo Carvajal & John R. Fleder –

At the invitation of the U.S. Supreme Court, the federal government has recently filed a brief as amicus curiae in the case of Albertson’s, Inc. v. Kanter (No. 07-1327) in which the government argues against preemption of California law.  The case was brought by California consumers of farmed salmon who alleged that grocers engaged in false advertising and unfair and deceptive trade practices (among other things) when they failed to disclose the presence of color additives in their salmon, in alleged violation of California’s Sherman Food, Drug, and Cosmetic Law (“Sherman Law”).  The Sherman Law sets out food labeling requirements that are identical to those imposed under federal law.  Albertson’s argued that federal law preempts the private lawsuit brought by consumers under the Sherman law.  The trial court agreed and dismissed the lawsuit on preemption grounds.  That dismissal was upheld by the California Court of Appeal, but reversed by the California Supreme Court (see out previous post here).  Albertson’s then filed a petition for a writ of certiorari with the U.S. Supreme Court, which prompted a request by the Court for the Solicitor General’s views on the matter.

In part, the government’s brief argues that the language of FDC Act § 403A “strongly suggests” that States are free to adopt requirements identical to federal requirements, and notes that NLEA section 6(c)(1) explicitly limits the preemptive effect of the NLEA.  The federal government further argues that nothing in § 403A suggests Congressional intent to “limit the States’ authority to prescribe the remedies for violations of the state requirements permitted by [section 403A].”  For support, the brief draws on the Court’s prior holdings interpreting other FDC Act statutory provisions in Medtronic, Inc. v. Lohr, Riegel v. Medtronic, Inc., and Bates v. Dow Agroscience LLC.

The government also argues in its brief that the California action is not preempted by FDC Act § 310, which provides that proceedings for enforcement, or to restrain violations, of the FDC Act must be by and in the name of the U.S. (with the exception of certain actions brought by States in conformance with certain procedural requirements).  According to the government, “[a]ctions to enforce state laws that impose requirements identical to those under the FDCA are not actions to enforce the FDCA itself.”  The government’s brief further argues that this section does not preempt state law claims that “parallel” FDC Act requirements.  Moreover, the federal government stated that even when state-law claims are predicated on violations of the FDC Act, they remain state-law claims that are not preempted by federal law.