On March 13, 2015, the Ninth Circuit held that the federal Food Drug & Cosmetics Act (“FDCA”) does not preempt state law causes of action for false advertising based on “No Trans Fat” claims appearing on the labeling of Benecol® – a butter/margarine substitute. Opinion, Reid v. Johnson & Johnson and McNeil Nutritionals, LLC, Case No. 12-56726 (9th Cir. 2015).

Last year, in POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2234, the U.S. Supreme Court ruled the FDCA did not preclude federal false advertising claims brought under the Lanham Act. However, as we reported then, the Supreme Court left open the possibility that state law claims would be preempted.

Both Pom Wonderful and the recent Reid decisions concern the Nutritional Labeling and Education Act (NLEA) amendments to the FDCA.  These amendments cover food and beverages and, unlike the FDCA’s drug provisions, contain specific preemption language prohibiting, inter alia, any state laws that “directly or indirectly . . . establish any requirement for the labeling of food that is not identical” to federal requirements.  21 U.S.C. § 343-1(a)(5).  Nevertheless, in Reid, the Ninth Circuit concluded that the plaintiffs’ causes of action based on California law were not preempted because NLEA did not expressly allow Benecol’s “No Trans Fat” claims.

Our fellow bloggers at Consumer Products Law Blog, reported on the Reid matter in its post, Ninth Circuit says no preemption for Benecol’s “No Trans Fat” label claims.