Farm Raised Salmon Class Action Defense Case: Class Action Preempted By Federal Food, Drug, And Cosmetic Act (FDCA) Because No State Law Private Right Of Action Exists Based On FDCA Violations California Court Holds

Oct 5, 2006 | By: Michael J. Hassen

In Action Alleging California Consumers Legal Remedies Act (CLRA) and Unfair Business Practices (UCL) Claims Concerning Artificially Colored Farmed Salmon, California Court of Appeal Affirms Judgment Granting Defense Motion to Dismiss Class Action on Grounds of Federal Preemption

Plaintiffs filed separate class action lawsuits against various defendants for unfair competition, false advertising, negligent misrepresentation, and violations of California’s Consumers Legal Remedies Act (CLRA) based on the alleged sale of artificially colored farmed salmon without disclosing that the salmon had been artificially colored. Farm Raised Salmon Cases, ___ Cal.App.4th ___, 48 Cal.Rptr.3d 449, 451 (Cal.App. 2006). The class action was premised on the allegation that the flesh of farmed salmon is naturally “grayish,” so they were fed chemicals for the purpose of coloring the flesh so that it would resemble the color of wild salmon. The complaint alleged that consumers would be less inclined to purchase the salmon without the chemical coloring, and that consumers were not informed of the artificial coloring. Specifically, the class action alleged that “the FDCA and parallel state laws require food labeling to state that farmed salmon is artificially colored,” id. Defense attorneys moved to dismiss the lawsuit on the grounds that it was preempted by the federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §§ 301 et seq. The trial court dismissed the class action and the appellate court affirmed, holding that “Congress made clear its intention to preclude private enforcement of the FDCA” and that “a state law private right of action based on an FDCA violation would frustrate the purposes of exclusive federal and state governmental prosecution of the act,” id.

The California Court of Appeal held that 21 U.S.C. § 337(a) of the FDCA requires that “an[y] action to enforce the FDCA must be by and in the name of the United States,” thereby precluding any private right of action under the act. Farm Raised Salmon, at 454. In fact, the Court observed, United States Supreme Court precedent states that this code section “is ‘clear evidence that Congress intended that the [FDCA] be enforced exclusively by the Federal Government.’” Id. (quoting Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 352 (2001)). The California appellate court then went on to conclude that “any private state law cause of action that is based on a violation of the FDCA” is in conflict with the express terms of § 337(a). Id., at 455. The Court explained its rationale at page 456 as follows:

In our view, if the alleged conduct would constitute a violation of the FDCA, a private right of action under the unfair competition law challenging the same conduct would interfere with the exclusive prosecutorial discretion of the federal and state governments with respect to FDCA violations, frustrate the federal government’s oversight of the act’s enforcement, and conflict with the clear congressional intent to preclude a private right of action based on an FDCA violation.

The appellate court therefore concluded that “all of the plaintiffs’ state law causes of action are preempted,” id., at 456, and affirmed dismissal of the class action.

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