California Courts of Appeal Reports
FARM RAISED SALMON CASES, 142 Cal.App.4th 805 (2006) 48
Cal.Rptr.3d 449 FARM RAISED SALMON CASES. No. B182901
Court of Appeal of California, Second District. August 31,
2006 REVIEW GRANTED December 13, 2006
[EDITORS’ NOTE: REVIEW GRANTED BY THE CALIFORNIA SUPREME
COURT; PURSUANT TO RULES 976, 976.1 and 979 OF THE
CALIFORNIA RULES OF COURT, THIS OPINION IS NOT CERTIFIED
FOR PUBLICATION. THE SHADED TEXT BELOW REPRESENTS THE
ORIGINAL OPINION AND IS PROVIDED FOR REFERENCE PURPOSES
ONLY.]
Appeal from the Superior Court of Los Angeles County, JCCP
No. 4329, Anthony J. Mohr, Judge. Page 806
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Hagens Berman Sobol Shapiro, Craig R. Spiegel, Lee M.
Gordon, Elaine T. Byszewski and Steve W. Berman for
Plaintiffs and Appellants.
Bill Lockyer, Attorney General, Albert Norman Shelden,
Assistant Attorney General, and Ronald A. Reiter, Deputy
Attorney General, as Amicus Curiae on behalf of Plaintiffs
and Appellants.
Akin Gump Strauss Hauer & Feld, Rex S. Heinke, David C.
Allen, Johanna R. Shargel; Streeter & Nangano, Thomas
Barclay, Michael Nangano, Michael L. Coates; Greenberg,
Glusker, Fields, Claman, Machtinger & Kinsella, Norman
Howard Levine; Ervin, Cohen & Jessup, Allan B. Cooper,
Tamara L. Dewar; O’Melveny & Myers, Carla J.
Christofferson; Seyfarth Shaw, Jay W. Connolly and Geoff S.
Long for Defendants and Respondents.
OPINION
CROSKEY, J.
Several individuals commenced separate actions against
owners and operators of grocery stores alleging that
defendants sold artificially colored farmed salmon without
disclosing to consumers the artificial coloring. The
actions were coordinated in Farm Raised Salmon Cases,
Judicial Council Coordination Proceeding No. 4329. The
plaintiffs filed a coordinated complaint alleging as a
class and representative action counts for unfair
competition, violation of the Consumers Legal Remedies Act
(CLRA) (Civ. Code, § 1750 et seq.), false
advertising, and negligent misrepresentation. The superior
court sustained a demurrer to the complaint on the grounds
that the Federal Food, Drug, and Cosmetic Act (FDCA) (21
U.S.C. § 301 Page 810 et seq.) preempted each cause
of action, that the dispute should be referred to the
United States Food and Drug Administration (FDA) or the
California Department of Health Services (DHS) under the
primary jurisdiction doctrine, and that plaintiffs failed
to state a cause of action for violation of the CLRA. In
finding preemption the court relied primarily on section
337(a) of title 21 United States Code (section 337(a)),
which states that an action to enforce the FDCA must be by
and in the name of the United States. Plaintiffs appeal the
judgment.
We conclude that in section 337(a) Congress made clear its
intention to preclude private enforcement of the FDCA, 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, and that
section 337(a) impliedly preempts all of plaintiffs’ causes
of action. We therefore affirm the judgment without
reaching or discussing the other grounds asserted by
defendants in support of their demurrer.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs in their consolidated and amended complaint
filed in March 2004 allege that fish farmers feed farmed
salmon the chemicals canthaxanthin and astaxanthin to
obtain a color of flesh resembling that of wild salmon.
They allege that the flesh of farmed salmon would appear
grayish without the chemical additives and that consumers
believe that the color of salmon is an indication of its
origin, quality, freshness, flavor, and other
characteristics. They allege that concerns have been raised
about the potential health risks of consuming the
artificial coloring agents in particular and farm-raised
salmon in general. Plaintiffs allege that the FDCA and
parallel state laws require food labeling to state that
farmed salmon is artificially colored and that defendants
have failed to comply with those requirements. They allege
that the failure to disclose the artificial color has
caused consumers to believe that farmed salmon is wild
salmon.
The complaint alleges counts for (1) unfair and unlawful
business acts and practices in violation of the unfair
competition law (Bus. & Prof. Code, § 17200 et seq.);
(2) unfair or deceptive trade practices under the CLRA; (3)
false and misleading advertising in violation of the false
advertising law (Bus. & Prof. Code, § 17500 et
seq.); and (4) negligent misrepresentation. The laws
alleged to be violated as a predicate for the unfair
competition law count include provisions of the FDCA and
California’s Sherman Food, Drug, and Cosmetic Law (Sherman
Law) (Health & Saf. Code, § 109875 et seq.), a
provision of the CLRA, and Penal Code section 383. The
complaint alleges a representative and class action on
behalf of plaintiffs and others similarly situated. Page
811
Defendants jointly demurred to the complaint on several
grounds, including that (1) section 337(a) expressly
precludes a private right of action to enforce the FDCA and
therefore impliedly preempts an action under state law by a
private party based on an FDCA violation, and each count of
plaintiffs’ complaint is based on alleged violations of the
FDCA, so section 337(a) preempts all of the counts alleged
in the complaint;[fn1] (2) further consideration of
plaintiffs’ complaint by the court could conflict with
regulation and enforcement by the FDA or DHS, which have
special competence in the area of food labeling, so the
action should be dismissed under the primary jurisdiction
doctrine; and (3) plaintiffs failed to allege an
affirmative representation as required in order to state a
cause of action under Civil Code section 1770, subdivision
(a)(5), (14) or (17). Defendants also moved to strike
portions of the complaint.
The trial court sustained the demurrer to each count, with
leave to amend, in an order filed on January 13, 2005. The
court stated in its order that an alleged violation of the
FDCA cannot provide the basis for a claim under the unfair
competition law because section 337(a) “explicitly bars a
private right of action,” quoting from our opinion in
Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 606
[89 Cal.Rptr.2d 370]. (Italics added.) The order further
stated that section 337(a) precludes private enforcement of
the FDCA, that alleged violations of the FDCA are the sole
basis for each count alleged in the complaint, and that
section 337(a) therefore preempts each count. The court
rejected plaintiffs’ arguments that the primary
jurisdiction doctrine does not apply and concluded that the
doctrine applies. The court also concluded that a claim
under the CLRA must be based on an affirmative statement of
fact rather than an omission, and that plaintiffs failed to
allege an affirmative statement of fact.
Plaintiffs elected not to amend their complaint, but to
challenge the sustaining of the demurrer on appeal from the
judgment. The court entered a judgment of dismissal with
prejudice on March 4, 2005. Plaintiffs have appealed from
that judgment.
CONTENTIONS
Plaintiffs contend (1) section 337(a) neither expressly
nor impliedly preempts their state law causes of action;
(2) the primary jurisdiction doctrine does not apply, and
even if it did apply it would support only a stay rather
Page 812 than dismissal; (3) the complaint alleges facts
sufficient to state a cause of action under the unfair
competition law based on unfair, fraudulent, and unlawful
business acts or practices; and (4) the undisclosed
artificial coloring of farmed salmon is itself a false
representation concerning its origin within the meaning of
the CLRA. Defendants dispute each of these contentions and
assert the arguments that they raised in the trial court.
DISCUSSION
1. Standard of Review
We independently review the ruling on a demurrer and
determine de novo whether the pleading alleges facts
sufficient to state a cause of action. (McCall v.
PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415 [106
Cal.Rptr.2d 271, 21 P.3d 1189].) We assume the truth of the
properly pleaded factual allegations, facts that reasonably
can be inferred from those expressly pleaded, and facts of
which judicial notice can be taken. (Schifando v. City of
Los Angeles (2003) 31 Cal.4th 1074, 1081 [6 Cal.Rptr.3d
457, 79 P.3d 569].) We construe the pleading in a
reasonable manner and read the allegations in context.
(Ibid.)
The sustaining of the demurrer also encompassed a ruling
on preemption. Preemption presents a question of law
concerning statutory construction and legislative intent,
which we review de novo. (Spielholz v. Superior Court
(2001) 86 Cal.App.4th 1366, 1371 [104 Cal.Rptr.2d 197].)
2. Preemption Principles
(1) The supremacy clause of the United States Constitution
(art. VI, cl. 2) grants Congress the power to preempt state
law. (Crosby v. National Foreign Trade Council (2000) 530
U.S. 363, 372 [147 L.Ed.2d 352, 120 S.Ct. 2288].) Federal
preemption is a question of congressional intent.
(Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485 [135
L.Ed.2d 700, 116 S.Ct. 2240]; English v. General Electric
Co. (1990) 496 U.S. 72, 78-79 [110 L.Ed.2d 65, 110 S.Ct.
2270].) Particularly in a field traditionally occupied by
the states such as the exercise of a state’s police powers,
Congress’s intent to preempt state law must be “`clear and
manifest.'” (Medtronic, supra, at p. 485.) Consumer
protection laws such as the unfair competition law, false
advertising law, and CLRA, are within the states’ historic
police powers and therefore are subject to the presumption
against preemption. (Washington Mutual Bank v. Superior
Court (2002) 95 Cal.App.4th 606, 613 [115 Cal.Rptr.2d 765];
Black v. Financial Freedom Senior Funding Corp. (2001) 92
Cal.App.4th 917, 926 [112 Cal.Rptr.2d 445].) That
presumption applies not only to the question of whether
Congress intended to preempt state law, but also to the
scope of Page 813 preemption. (Medtronic, supra, 518 U.S.
at p. 485.) The party asserting that a federal law preempts
a state law bears the burden to demonstrate preemption.
(Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, 956 [17
Cal.Rptr.3d 180, 95 P.3d 422].)
Congress’s intent to preempt state law may be stated
expressly, or it may be implied if a federal law
demonstrates an intent to “`occupy the field'” or a state
law conflicts with a federal law. (Crosby v. National
Foreign Trade Council, supra, 530 U.S. at p. 372.) The
existence of an express preemption clause implies that
Congress did not intend to preempt other matters, but does
not necessarily negate the possibility of field or conflict
preemption. (Sprietsma v. Mercury Marine (2002) 537 U.S.
51, 64-65 [154 L.Ed.2d 466, 123 S.Ct. 518]; Freightliner
Corp. v. Myrick (1995) 514 U.S. 280, 288 [131 L.Ed.2d 385,
115 S.Ct. 1483].) Congressional intent to occupy the field
“may be inferred from a `scheme of federal regulation . . .
so pervasive as to make reasonable the inference that
Congress left no room for the States to supplement it,’ or
where an Act of Congress `touch[es] a field in which the
federal interest is so dominant that the federal system
will be assumed to preclude enforcement of state laws on
the same subject.’ [Citation.]” (English v. General
Electric Co., supra, 496 U.S. at p. 79.) In a field
“`traditionally occupied by the States,’ congressional
intent to supersede state laws [by occupying the field]
must be `”clear and manifest.”‘ [Citation.]” (Ibid.)
Conflict preemption exists where state law conflicts with
federal law so that compliance with both the state and
federal laws is impossible, or where the state law “`stands
as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.'” (Crosby, supra,
at p. 373.) Again, the presumption against preemption
applies in a field traditionally occupied by the states, so
conflict preemption must be clear and manifest. (Bronco
Wine Co. v. Jolly, supra, 33 Cal.4th at p. 958, fn. 12.)
3. Section 337(a) Preempts Each Count Alleged in the
Complaint
(2) The FDCA prohibits, among other things, the
misbranding of food in interstate commerce. (21 U.S.C.
§ 331(b).) A food is considered misbranded if “its
labeling is false or misleading in any particular” (id.,
§ 343(a)) or “it bears or contains any artificial
flavoring, artificial coloring, or chemical preservative,
unless it bears labeling stating that fact, except that to
the extent that compliance with . . . this paragraph is
impracticable” (id., § 343(k)). A federal district
court may enjoin a violation of section 331 and in some
cases may impose criminal penalties, and the offending food
article may be seized. (Id., §§ 332, 333(a) &
(d), 334.) A proceeding to enforce the FDCA or to restrain
a violation must be commenced by and in the name of the
Page 814 United States, except that a state may commence a
proceeding for the civil enforcement of, or to restrain a
violation of, certain provisions after giving notice to the
federal government. (Id., § 337(a) & (b).)[fn2]
Section 337(a) does not expressly state that state laws
are preempted, but states that an action to enforce the
FDCA must be by and in the name of the United States.
Section 337(a) thus precludes a private right of action to
enforce the FDCA. (Pacific Trading Co. v. Wilson & Co.,
Inc. (7th Cir. 1976) 547 F.2d 367, 370; see Buckman Co. v.
Plaintiffs’ Legal Comm. (2001) 531 U.S. 341, 349, fn. 4,
352 [148 L.Ed.2d 854, 121 S.Ct. 1012].) As the United
States Supreme Court stated in Buckman, section 337(a) is
“clear evidence that Congress intended that the [FDCA] be
enforced exclusively by the Federal Government.” (Buckman,
supra, at p. 352.)
(3) The Sherman Law also prohibits the misbranding of food
(Health & Saf. Code, § 110765) in language that
parallels that of the FDCA. A food is considered misbranded
if “its labeling is false or misleading in any particular”
(id., § 110660) or “it bears or contains any
artificial flavoring, artificial coloring, or chemical
preservative, unless its labeling states that fact” (id.,
§ 110740). The Sherman Law also states that “[a]ll
food labeling regulations” adopted pursuant to the FDCA
“shall be the food labeling regulations of this state” and
that the DHS may adopt additional regulations. (Health &
Saf. Code, § 110100, subds. (a) & (b).) The DHS may
issue a complaint to impose a civil penalty against any
person charged with a violation of the Sherman Law or its
implementing regulations, that person is entitled to an
administrative hearing conducted pursuant to the
administrative adjudication provisions of the
Administrative Procedure Act (Gov. Code, § 11400 et
seq.), and the decision of the DHS is subject to judicial
review. (Health & Saf. Code, §§ 111855,
100171.) The Sherman Law states that the DHS or any other
person also may commence an action in the superior court for
an injunction to restrain a violation of the Sherman Law.
(Id., §§ 111900, 111910.) If the action is
brought by the Attorney General or a district attorney, the
court may impose a civil penalty. (Id., § 111915.)
(4) In section 337(a), Congress clearly expressed its
intention to preclude private enforcement of the FDCA. By
providing that only the federal government and, in some
limited circumstances and only after giving notice to the
federal government, a state may commence an action to
enforce the FDCA, Congress reserved for the federal
government and the states the Page 815 discretion to
enforce or not enforce the FDCA in any particular set of
circumstances and afforded the federal government a degree
of oversight of the enforcement of the act. To allow a
private person to prosecute a state law private right of
action based on a violation of the FDCA would interfere
with that governmental prosecutorial discretion and federal
government oversight and conflict with the clear
congressional intent to provide for a comprehensive and
exclusive governmental enforcement scheme. These
circumstances seem to demonstrate that a state law private
right of action based on a violation of the FDCA
necessarily would conflict with section 337(a). (See Summit
Technology v. High-Line Medical Instruments (C.D.Cal. 1996)
922 F.Supp. 299, 306, 316 [claims under California’s unfair
competition law and false advertising law based on conduct
that violated the FDCA were “an attempt to assert a private
right of action where none exists”]; Animal Legal Defense
Fund v. Provimi Veal Corp. (D.Mass. 1986) 626 F.Supp. 278,
283 [state law claims based on violations of the FDCA and a
parallel Massachusetts statute were preempted because the
FDCA precludes a private right of action].)
We reject the Attorney General’s argument that section
337(a) only restricts standing in an action to “directly
enforce” the FDCA. In our view, by precluding a private
right of action “for the enforcement, or to restrain
violations, of this chapter,” section 337(a) necessarily
“conflicts” with any private state law cause of action that
is based on a violation of the FDCA.
(5) Plaintiffs’ count for violation of the unfair
competition law is clearly predicated on alleged violations
of the FDCA and the Sherman Law. The “unlawful” prong of
the unfair competition law authorizes a cause of action
based on a violation of another statute even if there is no
private right of action under the other statute. (Stop
Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17
Cal.4th 553, 562 [71 Cal.Rptr.2d 731, 950 P.2d 1086].)
“[I]t is in enacting the UCL itself, and not by virtue of
particular predicate statutes, that the Legislature has
conferred upon private plaintiffs `specific power’
[citation] to prosecute unfair competition claims.” (Ibid.)
The mere absence of a private right of action to enforce a
statute therefore does not preclude a right of action under
the unfair competition law based on a violation of the
predicate statute.
Federal preemption, however, is another question. A
private right of action under the unfair competition law
based on an alleged violation of the FDCA or the parallel
provisions of the Sherman Law would conflict with the clear
congressional intent to preclude private enforcement of the
federal act. 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 Page 816 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.
Plaintiffs allege in their operative complaint that
defendants have failed to disclose that farmed salmon
offered for sale was artificially colored by use of
canthaxanthin and astaxanthin in the fish feed, in
violation of the FDCA and the Sherman Law, and that the
same conduct also constitutes unfair and unlawful business
acts and practices under the unfair competition law, unfair
or deceptive trade practices under the CLRA, false and
misleading advertising in violation of the false advertising
law, and negligent misrepresentation. Put somewhat
differently, plaintiffs rely upon, and in order to recover
under any count in their complaint would necessarily have
to prove, facts reflecting one or more violations of the
FDCA. This is true even though, as the Attorney General
emphasizes, plaintiffs are actually seeking recovery under
the provisions of state law. The Attorney General argues
that such allegations constitute a permissible “indirect”
enforcement of the federal act that is not subject to
preemption. The critical issue, however, is not whether
plaintiffs’ complaint is seeking “direct” or “indirect”
enforcement of the federal act, but whether defendants’
conduct upon which plaintiffs’ claims rest involves
violations of the FDCA that plaintiffs will necessarily
have to prove in order to recover under their state law
claims. Thus, the proper standard to be applied rests upon
what facts plaintiffs will be required to prove under the
allegations of their complaint. If those facts demonstrate
violations of the FDCA, then preemption will apply
irrespective of the particular state law theories of
recovery relied upon by plaintiffs. To hold otherwise would
sanction a patent evasion of section 337(a) and would
permit plaintiffs to do the very thing that adherence to
federal law would preclude.
(6) We therefore conclude that all of plaintiffs’ state
law causes of action are preempted. Plaintiffs allege no
factual basis for any of their causes of action apart from
the alleged conduct of defendants which, if true, would
violate one or more provisions of the FDCA. As a result,
those causes of action are all preempted.[fn3] Thus, the
trial court’s sustaining of the demurrer to each count was
proper based on preemption. Accordingly, we need not reach
or consider the other grounds relied upon the court. Page
817
DISPOSITION
The judgment is affirmed. Defendants are entitled to
recover their costs on appeal.
Klein, P.J., and Aldrich, J., concurred.
[fn1] Defendants initially argued in support of their
demurrer that section 337(a) expressly preempted each cause
of action alleged in the complaint because it expressly
precluded a private right of action, but later argued in
reply that the express prohibition of a private right of
action in section 337(a) “creates a conflict with the
FDCA.” That is, defendants now rely on “conflict” rather
than “express” preemption. (See discussion, post.)
[fn2] “Except as provided in subsection (b) of this section
[describing the limited circumstances where a state
government may prosecute an action to enforce or restrain
violations of the FDCA and the conditions imposed thereon],
all such proceedings for the enforcement, or to restrain
violations, of this chapter shall be by and in the name of
the United States. . . .” (21 U.S.C. § 337(a).)
[fn3] Plaintiffs acknowledge that their state law claims
“incorporate and/or parallel federal food labeling
standards.” Page 818