D.C. Superior Court Holds That Challenge to Advertising Claim for Meat Product is Preempted Because USDA Approved Same Claim on Label

In 2016, the Animal League Defense Fund (ALDF) sued Hormel Foods Corporation, alleging that the company’s use of the terms “natural” and “no preservatives added” in advertising for its Natural Choice products violated the D.C. Consumer Protection Procedures Act.  Plaintiff alleged that the these claims materially misled consumers into believing that Hormel’s products are made from animals that are humanely raised and not “factory farmed” and that they do not contain preservatives or nitrates or nitrites that are not from natural sources.  The advertising claims were identical to the claims on the product labels.

Hormel moved for summary judgment claiming that the ALDF did not have standing to bring the case and that, in any event, the claim was preempted by federal law.

Like the Federal Food, Drug and Cosmetic Act (FDC Act), the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) prohibit the sale of meat and poultry products that are labeled in a false or misleading manner.   The FMIA and PPIA specifically preempt state labeling law and delegate the regulation of meat and poultry products to the USDA.  See 21 U.S.C. §§ 467e & 678 (“Marking, labeling, packaging, or ingredient requirements . . . in addition to, or different than, those made under this chapter may not be imposed by any State.”)  USDA has interpreted the laws as requiring that FSIS review and approve the labels.  Although some labels may be approved generically, labels with certain claims, including natural claims, must be reviewed and approved by USDA.  The USDA reviewed and approved Hormel’s use of the claims “natural” and “no preservatives added.”

The FMIA and PPIA do not regulate advertising and FSIS does not review and approve advertising claims.  ALDF argued that the advertising claims therefore were not preempted.  However, the court held that as long as manufacturer’s labels are approved by the USDA, the manufacturer can use those same claims in advertising.  State law challenges to those advertising claims are preempted.  Any other interpretation would result in confusion.  If USDA determines that a “producer can accurately use a term in a label . . . the producer should be able to use the same term in its advertising.”  Since USDA had made an affirmative decision that the claims of “natural” and “no preservatives added” were not misleading as applied to Hormel’s meat products a challenge to these claims used in advertising was preempted.  Challenges to advertising claims that are different in material ways from claims on approved labels would not be preempted.