Warning: This Meat Contains a Chemical Known to the State of California to Cause Cancer and Reproductive Toxicity

By Ricardo Carvajal –

Californians won’t have to contend with this warning in their grocery stores – for now.  A California appellate court has upheld a lower court’s ruling that the Federal Meat Inspection Act (FMIA) preempts Proposition 65 point-of-sale warning requirements for meat.  The suit was filed by trade associations for the meat industry in response to notices of violation sent to meat processors and retailers by a California citizen.  Proposition 65 requires that such a notice be provided before the filing of a citizen suit to enforce that law.  The notices contended that certain meat products containing dioxins and PCB’s, both of which have been identified as carcinogens under Proposition 65, were being sold without a Proposition 65 warning (PCB’s are also listed as reproductive toxins).  Proposition 65 requires that a “clear and reasonable” warning be provided before consumers are exposed to a chemical “known to the state to cause cancer or reproductive toxicity.”  The trade associations sought a declaratory judgment that Proposition 65 is preempted by the FMIA.
 
The trial court granted summary judgment for the trade associations, and ruled that Proposition 65 was impliedly preempted by the FMIA.  The appellate court upheld the grant of summary judgment on the ground that Proposition 65 is expressly preempted by the FMIA.  The appellate court decision is worth reading for its extensive discussion of the scope of “labeling” as that term is used in the FMIA, FDCA, and FIFRA.  Based on its reading of those statutes and applicable judicial precedents, the appellate court concluded that the FMIA expressly preempts a Proposition 65 point-of-sale warning requirement because that warning would constitute “labeling” that is in addition to, or different than the FMIA's labeling requirements.  The appellate court relied on the definition of "labeling" in FDCA section 201(m), as interpreted by the United States Supreme Court in Kordel v. United States, 335 U.S. 345 (1948) (material constitutes labeling if it bears a “textual relationship” to the product, “supplements or explains” the product, and is “designed for use in the distribution and sale” of the product).  No word yet on whether there will be an appeal.