In Florida, Watch How You Use “Honey”

By Ricardo Carvajal –

A federal court has ruled that the express preemption provisions added to the Federal Food, Drug, and Cosmetic Act (“the Act”) by the Nutrition Labeling and Education Act (“NLEA”) do not preempt Florida’s standard of identity for honey.  Plaintiffs in the case, Guerrero v. Target Corp., Case No. 1:12-cv-21115-JIC, alleged that defendant misled consumers by selling honey from which “all traces of naturally occurring pollen” have been removed.  Florida’s standard of identity for honey provides that “no pollen… may be removed except where unavoidable in the removal of foreign matter.”  Plaintiffs claim that pollen in honey provides certain health benefits, and facilitates identifying the honey’s geographic origin.

Defendant moved for dismissal of the complaint in part on the ground that section 403A of the Act expressly preempts plaintffs’ claim.  Defendant contended that its product was properly labeled with “honey” as its common or usual name, as required by section 403(i)(1) of the Act.  Because section 403A preempts any requirement for the labeling of food that is not identical to the requirement of section 403(i)(1), defendant argued that plaintiffs’ claim was preempted. 

The court disagreed, noting that Congress has “only expressly preempted standards of identity which conflict with established federal standards,” and that there is no federal standard of identity for honey.  The court further concluded that, “if a state has prescribed a standard of identity for a food product, the provisions of [section 403(i)(1)] are not triggered.”

Because plaintiffs failed to provide specific details to support their claim that defendant’s honey does not contain pollen, the complaint was dismissed.  However, plaintiffs have leave to amend their complaint to state the factual basis for their claim.