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1.7.8.2 Food and Tobacco

Neither the Food and Drug Administration’s inaction regarding mercury levels in fish, nor a letter in which it espoused preemption, resulted in preemption of a state failure-to-warn claim.366 State law claims concerning misstatements on a nutritional label are not preempted by the federal nutritional labeling law,367 at least as long as they seek to enforce only the federal requirements.368 Some courts hold that the FDA nutritional labeling rules do not preempt a claim based on a manufacturer’s voluntary issuance of a warranty.369 But another court held that a warranty claim could not be based on a label that had been approved by the United States Department of Agriculture under the Federal Meat Inspection Act and the Poultry Products Inspection Act.370

While federal regulation of cigarettes preempts a number of types of claims, it does not preempt an express warranty claim based on the manufacturer’s advertisements.371 Implied warranty claims against cigarette manufacturers may also escape preemption.372 But the Fifth Circuit has held that an express warranty claim cannot be based on a cigarette manufacturer’s use of descriptive terms required by the Federal Trade Commission.373

Footnotes

  • 366 {334} Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237 (3d Cir. 2008).

  • 367 {335} 21 U.S.C. § 341.

  • 368 {336} Reyes v. McDonald’s Corp., 588 F. Supp. 2d 527 (N.D. Ill. 2006). Accord Koenig v. Boulder Brands, Inc., 995 F. Supp. 2d 274 (S.D.N.Y. 2014). See also Stewart v. Smart Balance, Inc., 2012 WL 4168584 (D.N.J. June 26, 2012) (no preemption of warranty claim that did not seek to impose requirements different from federal requirements). See generally National Consumer Law Center, Unfair and Deceptive Acts and Practices § 2.5.9 (9th ed. 2016), updated at www.nclc.org/library (detailed discussion of preemption of nutritional labeling claims).

  • 369 McMorrow v. Mondelez Int’l, Inc., 2018 WL 3956022, at *12 (S.D. Cal. Aug. 17, 2018); Ackerman v. Coca-Cola Co., 2010 WL 2925955, at *7 (E.D.N.Y. July 21, 2010).

  • 370 {337} Meaunrit v. The Pinnacle Foods Group, L.L.C., 71 U.C.C. Rep. Serv. 2d 624 (N.D. Cal. 2010); In re Pepsico, Inc., 588 F. Supp. 2d 527 (S.D.N.Y. 2008) (deception and warranty claims preempted when they sought to impose a standard for bottled water labeling that was different from federal standards).

  • 371 {338} Cipollone v. Liggett Group, Inc., 505 U.S. 504, 525–526, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992).

  • 372 {339} Johnson v. Brown & Williamson Tobacco Corp., 122 F. Supp. 2d 194, 202–203 (D. Mass. 2000) (warranty claims not preempted except implied warranty claims that are based on duty to warn); Evans v. Lorillard Tobacco Co., 62 U.C.C. Rep. Serv. 2d 661 (Mass. Super. Ct. 2007). See generally Cipollone v. Liggett Group, Inc., 505 U.S. 504, 523–525, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992).

  • 373 {340} Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383 (5th Cir. 2007).