Robert Cohen v. Conagra Brands, Inc. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT COHEN, a consumer, on No. 20-55969
behalf of himself and all others
similarly situated, D.C. No.
Plaintiff-Appellant, 8:20-cv-00637-
DOC-ADS
v.
CONAGRA BRANDS, INC., a Delaware OPINION
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted September 3, 2021
Pasadena, California
Filed October 26, 2021
Before: Mark J. Bennett and Ryan D. Nelson, Circuit
Judges, and David A. Ezra, * District Judge.
Opinion by Judge Bennett
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 COHEN V. CONAGRA
SUMMARY **
Product Labels / Preemption
The panel affirmed in part and reversed in part the
district court’s dismissal of a plaintiff’s putative consumer
class action alleging that ConAgra Brands, Inc. falsely
advertised its frozen chicken products as natural and
preservative-free, when in fact they contained synthetic
ingredients.
The district court found that the U.S. Department of
Agriculture’s Food Safety and Inspection Service (“FSIS”)
had approved ConAgra’s poultry labels, and therefore
plaintiff’s claims challenging both the label and ConAgra’s
website advertising were preempted by the federal Poultry
Products Inspection Act (“PPIA”). The district court
dismissed all of plaintiffs’ claims.
A plaintiff who brings a state law claim that the approved
label is false or misleading is seeking to impose a
requirement different from the federal requirements, and that
state law claim is preempted by 21 U.S.C. § 467e, which bars
plaintiffs from challenging the agency’s application of the
PPIA’s mislabeling standards through state law claims.
Plaintiff alleged that the PPIA contained a savings clause
that allowed his claims to survive preemption. Plaintiff
mainly disputed whether there was enough evidence in the
record to support the district court’s finding that ConAgra’s
labels were reviewed and approved by FSIS. The panel held
that the mere existence of the label was insufficient to
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
COHEN V. CONAGRA 3
establish that it was reviewed and approved by FSIS.
Preemption is an affirmative defense, and when the parties
dispute whether FSIS review occurred at all, the defendant
must produce evidence that the label was reviewed and
approved by FSIS. The panel reversed the district court’s
preemption of plaintiff’s claims challenging the product
label. On limited remand, the parties should submit
evidence about (and the district court should decide) only
whether ConAgra’s label was reviewed and approved by
FSIS. If the evidence shows that ConAgra’s label was
approved by FSIS, then plaintiff’s claims are preempted.
Plaintiff may not try to argue or show that FSIS’s approval
decision was wrong.
ConAgra’s website representations were not reviewed
by FSIS. The label and the website were not materially
identical. The website representation about the chicken
products read: “They’re made with 100% natural, white
meat chicken and without preservatives, artificial flavors, or
artificial colors.” The panel held, assuming that the product
labels were reviewed by FSIS, plaintiff could not challenge
the first half of that representation because it was essentially
identical to the representation on the product label – “Made
with 100% Natural White Meat Chicken.” Any challenge to
that phrase was premised ultimately upon the inadequacy of
the product label, and preempted. The second half of the
representation was materially different from the
representations on the label. The panel held, accordingly,
that plaintiff’s state law claims challenging ConAgra’s
website representation that the chicken products as a whole
contained no preservatives, artificial flavors, or artificial
colors were not preempted.
The panel declined ConAgra’s invitation to affirm the
district court’s decision on five different grounds. The panel
4 COHEN V. CONAGRA
did not consider four of ConAgra’s arguments. The panel
did reach ConAgra’s fifth argument, and concluded that the
primary jurisdiction doctrine was inapplicable here. The
doctrine is a prudential doctrine under which courts may
determine that the initial decision-making responsibility
should be performed by the relevant agency rather than the
courts. The panel held that none of the justifications for the
primary jurisdiction doctrine existed here.
COUNSEL
Gretchen Elsner (argued), Elsner Law & Policy LLC, Santa
Fe, New Mexico; Marc L. Godino and Danielle L. Manning,
Glancy Prongay & Murray LLP, Los Angeles, California;
Alreen Haeggquist, Kathleen Herkenhoff, and Ian Pike,
Haeggquist & Eck LLP, San Diego, California; for Plaintiff-
Appellant.
Nowell Donald Berreth (argued) and Angela M. Spivey,
Alston & Bird LLP, Atlanta, Georgia; Rachel E. K. Lowe,
Alston & Bird LLP, Los Angeles, California; for Defendant-
Appellee.
Robert W. George, Friday Eldredge & Clark LLP, Rogers,
Arkansas; Joshua C. Ashley, Friday Eldredge & Clark LLP,
Little Rock, Arkansas; for Amici Curiae Consumer Brands
Association, North American Meat Institute, National
Turkey Federation, National Chicken Council, National
Pork Producers Council, American Association of Meat
Processors, and American Frozen Food Institute.
Stephen Gardner, Law Office of Stephen Gardner, Bend,
Oregon; John A. Yanchunis and Kenya J. Reddy, Morgan &
Morgan Complex Litigation Group, Tampa, Florida; for
COHEN V. CONAGRA 5
Amici Curiae National Association of Consumer Advocates,
Animal Legal Defense Fund, and Food & Water Watch Inc.
OPINION
BENNETT, Circuit Judge:
Robert Cohen brings state claims alleging that ConAgra
Brands, Inc. (“ConAgra”), falsely advertises its frozen
chicken products as natural and preservative-free, when in
fact they contain synthetic ingredients. But poultry products
and their labeling are strictly regulated by the Poultry
Products Inspection Act (“PPIA”). 1 Under the PPIA, certain
poultry labels, like the ones in this case, must be preapproved
by a federal agency before the products go to market. See
21 U.S.C. § 457(c); 9 C.F.R. § 412.2(b), (e). The district
court found that the United States Department of
Agriculture’s Food Safety and Inspection Service (“FSIS”)
had approved ConAgra’s poultry labels, and thus Cohen’s
claims challenging both the label and ConAgra’s website
advertising were preempted. We have jurisdiction under
28 U.S.C. § 1291; we affirm in part, reverse in part, and
remand. 2
I.
In 2015, Cohen began purchasing various frozen chicken
products such as chicken nuggets and fried chicken. These
chicken products are produced by ConAgra and similarly
1
21 U.S.C. §§ 451–473.
2
We GRANT the motion of the National Association of Consumer
Advocates, et al. to become amici curiae in support of Cohen.
6 COHEN V. CONAGRA
labeled, with prominent representations on the front of the
packaging that read (in capital letters of varying sizes):
“Made with 100% Natural White Meat Chicken”; “No
Preservatives”; “No Artificial Colors”; “No Added
Hormones”; “No Artificial Flavors”; and “0g Trans Fat per
Serving.” The chicken products allegedly contain three
“synthetic” ingredients: sodium acid pyrophosphate, sodium
tripolyphosphate, and modified corn starch. Sodium acid
pyrophosphate improves the color of canned foods and is
also a leavening agent often used in baked goods. Sodium
tripolyphosphate is a preservative that slows the spoilage of
meat, helps keep its natural color, and improves its texture.
Modified corn starch has thickening properties.
Cohen alleges that, based on the representations on the
product labels, he thought the entirety of the chicken
products (as opposed to only the chicken meat contained in
those products) was “free of preservatives and synthetic
ingredients.” Thus, he claims the labels are false or
misleading. In early 2018, Cohen visited ConAgra’s
website, which provides descriptions of the chicken products
with a picture of the front packaging. The description
paraphrases the representations on the label, and states:
“[The product is] made with 100% natural white-meat
chicken, and without preservatives, artificial flavors, or
artificial colors.” Cohen claims that he relied on these
representations and continued buying ConAgra’s chicken
products until January 2019. In April 2020, Cohen brought
this putative class action against ConAgra, claiming that its
product label and website representations violated
California’s Consumer Legal Remedies Act (“CLRA”),
Unfair Competition Law (“UCL”), and False Advertising
Law (“FAL”). See Cal. Civil Code §§ 1750–1784; Cal. Bus.
& Prof. Code §§ 17200–17210; Cal. Bus. & Prof. Code
§§ 17500–17536. He sought damages and injunctive relief.
COHEN V. CONAGRA 7
The district court dismissed Cohen’s claims as
preempted by the PPIA. The court took judicial notice of the
images of the front packaging submitted by ConAgra and
concluded that the FSIS had “approved the labeling of the
Chicken Products, including the specific representation
challenged by [Cohen].” The court also found “no reason to
distinguish between the packaging itself and an image of the
packaging viewed over the Internet.” Thus, it held that all
of Cohen’s claims were preempted and dismissed them with
prejudice.
II.
We review de novo a district court’s dismissal for failure
to state a claim upon which relief can be granted. Curtis v.
Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019).
Questions of preemption and statutory interpretation are also
reviewed de novo. Ass’n des Éleveurs de Canards et d’Oies
du Québec v. Becerra, 870 F.3d 1140, 1145 (9th Cir. 2017).
We review the denial of leave to amend for an abuse of
discretion, but we review the futility of amendment de novo.
United States v. United Healthcare Ins. Co., 848 F.3d 1161,
1172 (9th Cir. 2016).
III.
Congress passed the PPIA to “assur[e] that poultry
products . . . are wholesome, not adulterated, and properly
marked, labeled, and packaged.” 21 U.S.C. § 451. The
statute prohibits the sale of poultry “under any name or other
marking or labeling which is false or misleading,” but
“marking and labeling . . . which are not false or misleading
and which are approved by the Secretary are permitted.” Id.§ 457(c). The Secretary delegated authority to oversee
poultry products to FSIS, 9 C.F.R. § 300.2(a), and FSIS
promulgated regulations to govern the label approval
8 COHEN V. CONAGRA
process: “No final label may be used on any product unless
the label has been submitted for approval to the FSIS
Labeling and Program Delivery Staff . . . and approved by
such staff, except for generically approved labels . . . .” Id.§ 412.1(a). Generically approved labels can “bear claims
and statements that are defined in FSIS’s regulations or the
Food Standards and Labeling Policy Book (except for
natural and negative claims)” and are deemed approved
without being submitted for evaluation. Id. § 412.2(b).
Almost all other claims are classified as “special statements
and claims,” and must be submitted to FSIS in the form of a
final label for approval. Id. § 412.1(c), (e). 3 Thus, the PPIA
creates a regulatory scheme in which, depending on the
content of the representations, some labels must be reviewed
and approved by FSIS.
3
The regulations define “special statements and claims” as:
claims, logos, trademarks, and other symbols on labels
that are not defined in the Federal meat and poultry
products inspection regulations or the Food Standards
and Labeling Policy Book, (except for “natural” and
negative claims (e.g., “gluten free”)), health claims,
ingredient and processing method claims (e.g., high-
pressure processing), structure-function claims, claims
regarding the raising of animals, organic claims, and
instructional or disclaimer statements concerning
pathogens (e.g., “for cooking only” or “not tested for
E. coli O157:H7”). Examples of logos and symbols
include graphic representations of hearts and
geographic landmarks. Special statements and claims
do not include allergen statements (e.g., “contains
soy”) applied in accordance with the Food Allergen
Labeling and Consumer Protection Act.
9 C.F.R. § 412.1(e).
COHEN V. CONAGRA 9
The PPIA also includes an express preemption
provision, which provides that any “[m]arking, labeling,
packaging, or ingredient requirements . . . in addition to, or
different than, those made under this chapter may not be
imposed by any State or Territory . . . with respect to articles
prepared at any official establishment.” 21 U.S.C. § 467e. In
Webb v. Trader Joe’s Co., we considered whether the PPIA
preempted a plaintiff’s challenge to a poultry product’s
retained water statement. 999 F.3d 1196, 1199 (9th Cir.
2021). We concluded that “FSIS [r]eviewed Trader Joe’s
[l]abels,” including the retained water statement, so “[a]ny
additional label requirements [plaintiff] seeks to place on
Trader Joe’s through [her state law claim] would necessarily
be ‘different than’ those required by the PPIA, and her
claims are thus preempted.” Id. at 1203–04. 4 So when the
agency reviews and approves a label, the agency is deciding
that it is not false or misleading under the PPIA, and thus the
agency “imposes” a federal requirement within the meaning
§ 467e. Cf. Riegel v. Medtronic, Inc., 552 U.S. 312, 322–23
(2008) (“Premarket approval . . . imposes ‘requirements’
under the [Medical Device Amendments of 1976] . . . . [I]t
is in no sense an exemption from federal safety review—it is
federal safety review.”). If a plaintiff claims that such a label
is false or misleading notwithstanding review and approval
by FSIS, he is essentially claiming that the agency’s decision
to approve the label was wrong. Cf. Marentette v. Abbott
Labs., Inc., 886 F.3d 112, 118 (2d Cir. 2018). Thus, a
plaintiff who brings a state law claim that the approved label
4
Cohen claims that Webb is limited to situations in which federal
regulations dictate the data collection process used to support certain
label statements (such as retained water representations). But in Webb,
we found two separate federal requirements that each preempted the
plaintiff’s claims: (1) the detailed regulation about measuring water
retention, and (2) agency approval of the label. 999 F.3d at 1201–02.
10 COHEN V. CONAGRA
is false or misleading is seeking to impose a requirement
different from the federal requirements. That state law claim
is preempted by § 467e, which bars plaintiffs from
challenging the agency’s application of the PPIA’s
mislabeling standards through state law claims. See Webb,
999 F.3d at 1204.
Cohen argues that, Webb notwithstanding, the PPIA
includes a savings clause that allows his claims to survive
preemption. Section 467e provides that any State “may,
consistent with the requirements under this chapter exercise
concurrent jurisdiction with the Secretary over articles
required to be inspected under this chapter for the purpose of
preventing the distribution . . . of any such articles which are
adulterated or misbranded and are outside of [an official]
establishment.” But in National Broiler Council v. Voss, we
explained that § 467e “authorizes states to undertake,
concurrently with the USDA, efforts to enforce federal
requirements.” 44 F.3d 740, 746 (9th Cir. 1994) (per
curiam) (“[Section 467e] does not grant states the authority
to enact their own additional requirements.”). Cohen’s
policy arguments against preemption are not only irrelevant,
but also unpersuasive. The absence of a remedy for
consumers in the PPIA is intentional. See 21 U.S.C. § 467d.
Congress granted a federal agency the authority to uniformly
determine the standard for poultry mislabeling and to apply
that standard to labels before they go to market. See Voss,
44 F.3d at 744. Allowing private consumers to second-guess
the agency’s decisions through state law claims against
producers would both circumvent that pre-approval process
and conflict with the PPIA’s goal of national uniformity. See
21 U.S.C. § 467e; H.R. Rep. No. 90-1333, (1968), reprinted
in 1968 U.S.C.C.A.N. 3426, 3442 (“States would be
precluded [under the amended PPIA] from imposing
additional or different labeling . . . requirements for federally
COHEN V. CONAGRA 11
inspected products. Both industry and consumers would
benefit from . . . greater uniformity of labeling requirements
. . . .”). Thus, if ConAgra’s labels were reviewed and
approved by FSIS, then Cohen’s claims challenging the
labels would be preempted. 5
Cohen mainly disputes whether there is enough evidence
in the record to support the district court’s finding that
ConAgra’s labels were reviewed and approved by FSIS. The
only evidence before us is the label itself—there are no
affidavits or other documentary evidence showing that the
label was submitted to and approved by FSIS. 6 In Webb, we
5
Webb did leave a “possible ‘narrow gap’” through which a
plaintiff’s claims might survive preemption. 999 F.3d at 1204. But that
“gap” is limited to situations in which the plaintiff challenges the facts
underlying the agency approval process. See In re Aurora Dairy Corp.
Organic Milk Mktg. & Sales Pracs. Litig., 621 F.3d 781, 797–99 (8th
Cir. 2010). Cohen does not make those allegations (and it is unlikely
any such allegations, if made, would be plausible given that the
“synthetic” ingredients are listed in the ingredient list on the packaging
of the chicken products).
6
After argument, ConAgra filed a Federal Rule of Appellate
Procedure 28(j) letter including an application for sketch approval for
one of its chicken products, with a stamp showing FSIS approved the
application. The “approved” label contains the same representations as
those that Cohen challenges here. And because “[p]reviously approved
labels containing special claims may be generically approved if the only
modification involves changes unrelated to the special claim,” Prior
Label Approval System: Generic Label Approval, 78 Fed. Reg. 66826-
01, 66830 (Nov. 7, 2013), ConAgra’s evidence would preempt all of
Cohen’s product-label claims to all product labels, (unless he can
plausibly allege the modification is misleading). Cohen does not do so
here. Instead, he alleges that the special statements (which are
unchanged) are misleading. Thus, ConAgra’s evidence would establish
12 COHEN V. CONAGRA
found that label evidence alone was enough to conclude that
a retained water claim was federally approved, but the
plaintiff in that case did not challenge whether the label was
reviewed by FSIS. See id. at 1203–04. 7 By contrast, Cohen
contends that ConAgra used the generic approval process for
its labels, improperly bypassing FSIS review. Here, we find
that the mere existence of the label is insufficient to establish
that it was reviewed and approved by FSIS. Preemption is
an affirmative defense, so the defendant bears the burden of
pleading and supporting its preemption argument. See
Durnford v. MusclePharm Corp., 907 F.3d 595, 603 n.8 (9th
Cir. 2018). Thus, when the parties dispute whether FSIS
review occurred at all, the defendant must produce evidence
that the label was reviewed and approved by FSIS. After all,
that the challenged statements were reviewed by FSIS and would
preempt Cohen’s claims.
“Rule 28(j) . . . is not designed to bring new evidence through the
back door.” Manley v. Rowley, 847 F.3d 705, 710 n.2 (9th Cir. 2017)
(citation omitted). Even if we could take judicial notice of the approval
(and ConAgra had so moved), we would remand for consideration of this
new information, especially where we are remanding for consideration
of Cohen’s website claims. On remand, ConAgra may submit its
approval evidence to the district court, which may take judicial notice of
the evidence (if appropriate) or allow limited discovery only into
ConAgra’s preempted-by-approval defense. See Ellingson Timber Co.
v. Great N. Ry. Co., 424 F.2d 497, 499 (9th Cir. 1970) (recognizing
court’s authority to limit discovery to potentially dispositive issues).
7
Instead, the plaintiff in Webb argued only that the retained water
claim itself was a generic claim, which is true. 999 F.3d at 1203. But a
review of the agency’s rules showed that “when a poultry label includes
special statements in addition to general statements, FSIS reviews the
entirety of the label.” Id. And because the label contained special
statements, we concluded that FSIS reviewed and approved all the
statements on the label, including the generic retained water claim. Id.
at 1203–04.
COHEN V. CONAGRA 13
the defendant producer and not the plaintiff will have access
to evidence as to FSIS review and approval of its label. 8 Cf.
Molski v. Foley Ests. Vineyard & Winery, LLC, 531 F.3d
1043, 1048 (9th Cir. 2008). And this is hardly a significant
burden. 9 Thus, we reverse the district court’s preemption of
Cohen’s claims challenging the product labels.
We emphasize the limited nature of our remand. On
remand, the parties should submit evidence about (and the
district court should decide) only whether ConAgra’s label
was reviewed and approved by FSIS. If the evidence shows
that ConAgra’s label was approved by FSIS, then Cohen’s
claims are preempted. Cohen may not try to argue or show
that FSIS’s approval decision was wrong. Once the agency
has decided that a poultry label meets the requirements of
federal law, a plaintiff has no recourse through state law
(except for the “possible ‘narrow gap’” discussed supra note
5, which is inapplicable here).
IV.
ConAgra’s website representations, however, were not
reviewed by FSIS. The federal regulations require only the
review of labels, which “means a display of written, printed,
or graphic matter upon any article or the immediate
container . . . of any article.” 21 U.S.C. § 453(s). A website
8
That a plaintiff could make a Freedom of Information Act request
to FSIS is irrelevant. It is the defendant who will have the required
information (assuming the defendant’s review and approval claim is
accurate).
9
As if to prove our point, ConAgra evidently had no trouble
producing records of FSIS review after oral argument. But as we have
discussed, ConAgra should have submitted that evidence to the district
court, not on appeal, and not through a 28(j) letter.
14 COHEN V. CONAGRA
representation is not a label. But in Taylor AG Industries v.
Pure-Gro, we held that state law claims related to
advertising that are “premised ultimately upon the
inadequacy of the product label” are treated the same as a
state law claim about the label itself. 54 F.3d 555, 561 (9th
Cir. 1995). We further held that a plaintiff’s state law claim
that a manufacturer had inadequate warnings at the point-of-
sale of a product is preempted if federal law does not require
the label to include such warnings. Id. That rule is logical
and necessary. Otherwise, plaintiffs could circumvent
preemption by simply challenging an online picture of a
label rather than the label itself. 10
But here, the label and the website are not materially
identical. The key website representation about the chicken
products reads: “They’re made with 100% natural, white
meat chicken and without preservatives, artificial flavors, or
artificial colors.” Applying our holding in Taylor AG
Industries, and assuming that the product labels were
reviewed by FSIS, Cohen cannot challenge the first half of
that representation. The phrase “They’re made with 100%
natural, white-meat chicken” is essentially identical to the
representation on the product label—“Made with 100%
Natural White Meat Chicken.” Any challenge to that phrase
is thus “premised ultimately upon the inadequacy of the
product label” and preempted. Taylor AG Indus., 54 F.3d
at 561.
But the second half of that representation—“They’re
[(the chicken products)] made . . . without preservatives,
artificial flavors, or artificial colors”—is materially different
It is not clear if Cohen is challenging the image of the chicken
10
products as misleading, but if he is, that claim would be preempted
(assuming FSIS reviewed and approved the label).
COHEN V. CONAGRA 15
from the representations on the label. As ConAgra
acknowledges, the label “nowhere claims that the products,
as a whole, . . . contain ‘no preservatives.’” But the website
representation does claim that the chicken products as a
whole are made without preservatives, artificial flavors, or
artificial colors. The conjunction “and” shows that the
phrase “without preservatives, artificial flavors, or artificial
colors” modifies the whole product, not just the “natural,
white-meat chicken.” Thus, the website representation
materially differs from the product label. Accordingly,
Cohen’s state law claims challenging ConAgra’s website
representation that the chicken products as a whole contain
no preservatives, artificial flavors, or artificial colors, are not
preempted (whether or not the product labels were reviewed
and approved by FSIS).
V.
ConAgra urges us to affirm the district court’s decision
on different grounds, but we decline its invitation. ConAgra
argues that (1) there is no plausible claim that its
representations are false or misleading under California’s
reasonable consumer standard, see Williams v. Gerber
Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008); (2) Cohen has
failed to plead “with particularity the circumstances
constituting fraud,” Fed. R. Civ. P. 9(b); (3) Cohen has not
alleged an injury in fact; (4) Cohen has not alleged a future
harm, and thus cannot seek injunctive relief; and (5) this case
should be referred to the agency to decide in the first
instance, under the primary jurisdiction doctrine. 11 We
decline to consider ConAgra’s first four arguments, which
ConAgra may reassert on remand. We reach only
11
ConAgra incorporates by reference another argument in a
footnote. We do not consider that argument. See Ninth Cir. R. 28-1(b).
16 COHEN V. CONAGRA
ConAgra’s last argument and conclude that the primary
jurisdiction doctrine is inapplicable here.
The primary jurisdiction doctrine “is a prudential
doctrine under which courts may, under appropriate
circumstances, determine that the initial decisionmaking
responsibility should be performed by the relevant agency
rather than the courts.” Syntek Semiconductor Co., Ltd., v.
Microchip Tech. Inc., 307 F.3d 775, 780 (9th Cir. 2002).
“Primary jurisdiction is properly invoked when a claim . . .
requires resolution of an issue of first impression, or of a
particularly complicated issue that Congress has committed
to a regulatory agency.” Brown v. MCI WorldCom Network
Servs., Inc., 277 F.3d 1166, 1172 (9th Cir. 2002). “The
doctrine does not require that all claims within an agency’s
purview to be decided by the agency. Nor is it intended to
‘secure expert advice’ for the courts from regulatory
agencies every time a court is presented with an issue
conceivably within the agency’s ambit.” Id. (quoting United
States v. Gen. Dynamics Corp., 828 F.2d 1356, 1365 (9th
Cir. 1987)).
The issue here, whether ConAgra’s product labels are
false or misleading, is not a complicated issue or even an
issue of first impression, as FSIS may have already decided
the question. There is also no risk of conflict between FSIS
and courts because the PPIA preempts any state law claims
that would impose requirements different from the federal
requirements imposed by FSIS. See Webb, 999 F.3d at 1203.
Thus, none of the justifications for the primary jurisdiction
doctrine exist here. Moreover, the doctrine would require us
to “either stay[] proceedings or dismiss[] the case without
prejudice, so that the parties may seek an administrative
ruling.” Clark v. Time Warner Cable, 523 F.3d 1110, 1115
(9th Cir. 2008). But “‘[t]here is no formal transfer
COHEN V. CONAGRA 17
mechanism between the courts and the agency’; rather, the
parties are responsible for initiating administrative
proceedings themselves.” Id. (quoting Syntek, 307 F.3d
at 782 n.3). Here, it is unclear how Cohen could seek an
administrative ruling, and ConAgra does not suggest a path
forward. For these reasons, we decline to invoke the primary
jurisdiction doctrine.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED. 12
12
The parties shall bear their own costs on appeal.