Class Action and Product Insights for Your Business
March 17, 2016 - False Advertising, Food Misbranding

Ninth Circuit Affirms Bar on California AG’s Efforts to Enforce Slack Fill Provisions Against Del Real in Meat and Poultry Case

On February 12, 2016, the Ninth Circuit affirmed the district court’s decision barring the California Attorney General’s efforts to enforce nonfunctional slack fill provisions against Del Real LLC, a producer of Mexican heat-and-serve meat and poultry products.  Del Real LLC v. Kamala D. Harris et al., No. 13-16893.  The district court had issued a permanent injunction barring the AG’s enforcement on the basis that the claims were preempted by the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA).   Del Real LLC v. Kamala D. Harris, 966 F. Supp. 2d 1047 (E.D. Cal. 2013).

The Ninth Circuit affirmed the preemption ruling, finding that California’s nonfunctional slack fill provisions are in “in addition to, or different than” the federal statutes’ general prohibitions against containers “filled as to be misleading.”  The court articulated two reasons why it would be impermissible to allow the California provisions to be applied to meat and poultry products: (1) the legislative history of the FMIA and PPIA shows a clear intent to create a uniform national labeling standard, counseling against allowing the states to develop variant standards; and (2) Congress intended to allow meat and poultry packaging to be subject to less specific regulation than other types of products.  The court reasoned that both of these intentions suggest it is unlikely that Congress intended for the states to be allowed to develop and apply more specific standards to slack fill for meat and poultry products.

The court noted, however, that nothing in its decision should be read to prevent California from addressing misleading packaging of meat and poultry products in accordance with its concurrent authority under the FMIA and PPIA.