Robert Reid v. Johnson & Johnson , 780 F.3d 952 ( 2015 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ROBERT REID, on Behalf of Himself          No. 12-56726
    and All Others Similarly Situated,
    Plaintiff-Appellant,      D.C. No.
    3:11-cv-01310-
    v.                         L-BLM
    JOHNSON & JOHNSON and MCNEIL
    NUTRITIONALS, LLC,                          OPINION
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Southern District of California
    M. James Lorenz, Senior District Judge, Presiding
    Argued and Submitted
    June 5, 2014—Pasadena, California
    Filed March 13, 2015
    Before: Alex Kozinski, Stephen S. Trott,
    and Consuelo M. Callahan, Circuit Judges.
    Opinion by Judge Callahan
    2                 REID V. JOHNSON & JOHNSON
    SUMMARY*
    Standing / Preemption
    The panel affirmed in part, and reversed in part, the
    district court’s decision dismissing a false advertising lawsuit
    brought against Johnson & Johnson and McNeil Nutritionals,
    LLC, concerning assertions McNeil made about its product
    Benecol, a substitute for butter or margarine.
    McNeil declared on Benecol’s label that the product
    contained “No Trans Fat” because the amount of trans fat in
    Benecol was so insignificant that it was authorized under the
    Food and Drug Administration’s regulations to make that
    statement. McNeil also contended that Benecol satisfied the
    standards set forth in a 2003 FDA letter that authorized its
    plant stanol esters statements, and was entitled to preemptive
    effect.
    The panel held that the plaintiff-appellant had standing to
    challenge McNeil’s statements. The panel also held that
    appellant’s state law claims for relief were not preempted.
    Specifically, the panel held that appellant’s claims were not
    preempted to the extent they were predicated on McNeil’s
    trans fat statements. In addition, the panel declined to afford
    preemptive effect to agency actions that did not carry the
    force of law under United States v. Mead Corp., 
    533 U.S. 218
    , 234 (2001), and its progeny; and applying the rule, the
    panel held that the FDA’s 2003 letter lacked preemptive
    effect. Finally, the panel held that appellant’s action was not
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    REID V. JOHNSON & JOHNSON                    3
    barred by the primary jurisdiction doctrine, which allows
    courts to stay proceedings or dismiss a complaint without
    prejudice pending resolution of an issue within the special
    competence of an administrative agency. The panel remanded
    for further proceedings.
    COUNSEL
    Jack Fitzgerald (argued), Gregory S. Weston, and Melanie
    Persinger, The Weston Firm, San Diego, California; Ronald
    A. Marron and Beatrice Skye Resendes, The Law Offices of
    Ronald A. Marron, APLC, San Diego, California, for
    Plaintiff-Appellant.
    Matthew I. Kaplan (argued), Mollie F. Benedict, and Amanda
    Villalobos, Tucker Ellis LLP, Los Angeles, California, for
    Defendants-Appellees.
    OPINION
    CALLAHAN, Circuit Judge:
    Robert Reid appeals the district court’s decision
    dismissing his false advertising lawsuit against Johnson &
    Johnson and McNeil Nutritionals, LLC (collectively,
    “McNeil”). Reid challenges a number of McNeil’s assertions
    about its product, Benecol. Benecol is a vegetable oil-based
    spread that McNeil sells as a healthy substitute for butter or
    margarine. Among other things, on Benecol’s label, McNeil
    prominently declares that the product contains “No Trans
    Fat” and contains plant stanol esters that lower cholesterol.
    Benecol, however, does contain trans fat.             McNeil
    4                 REID V. JOHNSON & JOHNSON
    nonetheless contends that the amount of trans fat in the
    product is so insignificant that it is authorized under the Food
    and Drug Administration’s (FDA) regulations to make the
    statement. It is also undisputed that Benecol does not comply
    with the terms of the FDA’s regulation authorizing plant
    stanol ester-based health claims. McNeil contends that
    Benecol nonetheless satisfies the standards set forth in a 2003
    FDA letter that authorizes its plant stanol esters statements
    and is entitled to preemptive effect.
    The district court found that Reid lacked standing to
    challenge the statements and that Reid’s claims for relief
    were preempted. However, the district court rejected
    McNeil’s arguments that Reid’s action was barred by the
    primary jurisdiction and abstention doctrines. We conclude
    that Reid has standing, that Reid’s claims for relief are not
    preempted, and that Reid’s action is not barred by the primary
    jurisdiction doctrine. Accordingly, we reverse the district
    court’s standing and preemption decisions, affirm the district
    court’s decision not to invoke the primary jurisdiction
    doctrine, and remand for further proceedings.
    I
    A
    McNeil manufactures and sells Benecol.1 Benecol is
    manufactured with partially hydrogenated vegetable oil,
    1
    The facts are drawn from Reid’s complaint. See Salameh v. Tarsadia
    Hotel, 
    726 F.3d 1124
    , 1128 (9th Cir. 2013) (“Because the district court
    dismissed the complaint on the pleadings, the facts come from the second
    amended complaint, except where otherwise noted.”), cert. denied, 134 S.
    Ct. 1322 (2014).
    REID V. JOHNSON & JOHNSON                     5
    which contains artificial trans fat. According to Reid,
    “[a]rtificial trans fat does not exist in nature, and the human
    body has not evolved to digest it.” It is “a toxic food additive
    that, in the amounts present in Benecol, negatively affects
    blood cholesterol levels.”
    Low density lipoprotein (“LDL”), or “bad” cholesterol,
    carries cholesterol to arteries and tissues. High density
    lipoprotein (“HDL”), or “good” cholesterol, “takes
    cholesterol away from tissues to the liver, where it is removed
    from the body.” High levels of LDL cholesterol and low
    levels of HDL cholesterol are associated with an increased
    risk of heart disease. The consumption of artificial trans fat
    “increases ‘bad’ LDL cholesterol and decreases ‘good’ HDL
    cholesterol.”       Consequently, consuming partially
    hydrogenated vegetable oil “causes cardiovascular [] disease,
    diabetes and cancer.”
    Benecol also contains plant stanol esters. Consuming
    plant stanols has been shown to reduce LDL cholesterol and
    thus the risk of heart disease. According to Reid, the partially
    hydrogenated vegetable oil in Benecol counteracts any
    positive effect associated with plant stanol esters in the
    product.
    The outside packaging for Benecol includes the following
    statements:
    •   “Proven to Reduce Cholesterol”
    •   “No Trans Fat”
    •   “No Trans Fatty Acids”
    6              REID V. JOHNSON & JOHNSON
    •   “Use at least 2 servings of spread per day
    with your meals and snacks. Each serving
    contains 0.85 g of Plant Stanol Esters (0.5
    g plant stanols). BENECOL® Spreads
    can help you meet the National
    Cholesterol Education Program
    Guidelines recommended amount of 2 g
    plant stanols/sterols per day.”
    •   “Plant Stanol Esters, the unique ingredient
    found only in BENECOL® Spreads, are
    derived from natural plant components
    found in vegetable oils such as soy. Plant
    Stanol Esters [sic] proven ability to lower
    cholesterol is supported by over 25
    studies, including one reported in the New
    England Journal of Medicine.”
    •   “Products containing 0.7 g or more of
    Plant Stanol Esters per serving eaten twice
    a day with meals for a daily intake of at
    least 1.4 g may reduce the risk of heart
    disease as part of a diet low in saturated
    fat and cholesterol.       A serving of
    BENECOL® spread contains 0.85 g of
    Plant Stanol Esters.”
    The outer packing depicts several heart icons, and the
    packaging for Benecol Light spread also depicts vegetables.
    The interior packaging, which a consumer would not see
    unless he or she opened the package (presumably, after
    purchasing it), further states:
    REID V. JOHNSON & JOHNSON                  7
    The name BENECOL® brings together Bene,
    meaning “good” and col, for “cholesterol”.
    BENECOL® offers you a great way to reduce
    your cholesterol with a delightfully good-
    tasting spread. Did you know that 2 or more
    servings of BENECOL® Spreads each day:
    TReduces “bad” (LDL) cholesterol
    TReduces total cholesterol
    TWorks to further reduce cholesterol for
    those on cholesterol—lowering statin
    medications
    TBlocks cholesterol from being absorbed into
    your body
    It also explains:
    How can BENECOL® Spreads have 0 grams
    trans fat if they contain partially hydrogenated
    oils?
    A small amount of partially hydrogenated oils
    are used in BENECOL® Spreads to maintain
    a semi-solid structure and to enhance the
    melting characteristics of the BENECOL®
    Regular Spread. As a result, BENECOL®
    Spreads[] contain an extremely low level of
    trans fat. The FDA allows foods containing
    less than 0.5 grams of trans fat/serving to be
    labeled 0 grams trans fat, since this is
    considered an insignificant amount.
    8               REID V. JOHNSON & JOHNSON
    Reid contends that he is a lay consumer with no
    background in nutrition or food science. He purchased
    Benecol at three different stores in California over a period of
    more than three years prior to filing the complaint. He asserts
    that he did so based on McNeil’s representations in its
    advertisements and on its packaging. Benecol costs more
    than similar products, and Reid contends that he would not
    have been willing to pay as much as he did—if anything at
    all—for Benecol had he not been misled.
    B
    Reid filed his complaint on June 14, 2011. He alleged
    that McNeil’s plant stanol esters-based health and “No Trans
    Fat” claims were not authorized under the FDA’s regulations
    and were false. He further asserted that the “Proven to
    Reduce Cholesterol” and related statements were false and
    misleading and rendered Benecol an improperly marketed
    drug. He also contended that McNeil created Benecol’s name
    and used heart graphics and vegetable depictions to reinforce
    its deceptive statements and to convey misleading
    information about Benecol’s health benefits. He asserted
    claims for relief on behalf of a putative class of Benecol
    purchasers under California’s Unfair Competition Law
    (“UCL”), Cal. Bus. & Prof. Code §§ 17200–10; False
    Advertising Law (“FAL”), Cal. Bus. & Prof. Code
    §§ 17500–09; and Consumer Legal Remedies Act (“CLRA”),
    Cal. Civ. Code §§ 1750–84.
    The district court granted McNeil’s motion to dismiss.
    Initially, the district court decided that Reid had sufficiently
    alleged an economic injury, but lacked standing because he
    failed to plead reasonable reliance on any misrepresentations.
    The district court further concluded that Reid’s claims for
    REID V. JOHNSON & JOHNSON                     9
    relief were preempted under federal law. It held that
    McNeil’s plant stanol esters statements complied with a 2003
    FDA letter where the agency discussed its intentions about
    enforcing certain requirements for health claims about plant
    stanol esters, and it found that McNeil’s cholesterol reduction
    and trans fat statements complied with FDA regulations. The
    court rejected McNeil’s arguments that it should stay or
    dismiss the case under the primary jurisdiction or abstention
    doctrines. It also denied Reid’s request to take judicial notice
    of a number of FDA warning letters. Reid appealed and we
    have jurisdiction pursuant to 28 U.S.C. § 1291.
    II
    We review de novo a district court’s order granting a
    motion to dismiss on preemption grounds, for lack of
    standing, or for failure to state a claim upon which relief can
    be granted. Lily v. ConAgra Foods, Inc., 
    743 F.3d 662
    , 664
    (9th Cir. 2014) (preemption); Mont. Shooting Sports Ass’n v.
    Holder, 
    727 F.3d 975
    , 979 (9th Cir. 2013) (standing), cert.
    denied, 
    134 S. Ct. 955
    (2014); Henry A. v. Willden, 
    678 F.3d 991
    , 998 (9th Cir. 2012) (failure to state a claim). We review
    the district court’s “ultimate decision” to exercise or “decline
    to exercise jurisdiction for abuse of discretion, but conduct de
    novo review of the court’s application of the primary
    jurisdiction doctrine.” N. Cnty. Commc’ns Corp. v. Cal.
    Catalog & Tech., 
    594 F.3d 1149
    , 1154 (9th Cir. 2010)
    (quoting Rhoades v. Avon Prods., Inc., 
    504 F.3d 1151
    , 1162
    n.11 (9th Cir. 2007)).
    III
    The district court appeared to dismiss Reid’s claims for
    relief for lack of standing under California’s standing
    10             REID V. JOHNSON & JOHNSON
    requirements for the UCL, FAL, and CLRA. To establish
    standing to bring a claim under these statutes, plaintiffs must
    meet an economic injury-in-fact requirement, which demands
    no more than the corresponding requirement under Article III
    of the U.S. Constitution. Hinojos v. Kohl’s Corp., 
    718 F.3d 1098
    , 1104 (9th Cir. 2013). In a false advertising case,
    plaintiffs meet this requirement if they show that, by relying
    on a misrepresentation on a product label, they “paid more for
    a product than they otherwise would have paid, or bought it
    when they otherwise would not have done so.” 
    Id. at 1104
    n.3, 1108; see also POM Wonderful LLC v. Coca-Cola Co.,
    
    134 S. Ct. 2228
    , 2234 (2014) (“A consumer who is
    hoodwinked into purchasing a disappointing product may
    well have an injury-in-fact cognizable under Article III
    . . . .”). Reid undoubtedly satisfied this individual reliance
    requirement, as he alleged that he would not have been
    willing to pay as much as he did for Benecol, if anything, if
    he had not been misled by McNeil’s misrepresentations about
    Benecol’s health effects.
    The district court nevertheless decided Reid lacked
    standing because he failed to “set forth alleged facts showing
    that Benecol’s statements may deceive a reasonable
    consumer.” It is true that violations of the UCL, FAL, and
    CLRA are evaluated from the vantage point of a “reasonable
    consumer.” Williams v. Gerber Prods. Co., 
    552 F.3d 934
    ,
    938 (9th Cir. 2008). Under that test, a plaintiff must “show
    that members of the public are likely to be deceived.” 
    Id. (internal quotation
    marks omitted). But the reasonable
    consumer standard, unlike the individual reliance requirement
    described above, is not a standing requirement. Rather, it
    raises questions of fact that are appropriate for resolution on
    a motion to dismiss only in “rare situation[s].” 
    Id. at 939.
                    REID V. JOHNSON & JOHNSON                     11
    Even if the district court intended to dismiss Reid’s
    complaint for failure to state a claim upon which relief can be
    granted, it erred. The district court found that McNeil’s
    “alleged misrepresentations would not likely deceive a
    reasonable consumer” in light of its disclosures on its
    ingredient list (i.e., the presence of partially hydrogenated
    vegetable oil). However, as we have previously stated: “We
    do not think that the FDA requires an ingredient list so that
    manufacturers can mislead consumers and then rely on the
    ingredient list to correct those misinterpretations and provide
    a shield for liability for the deception.” 
    Williams, 552 F.3d at 939
    . Regardless, it is far from clear that typical consumers
    understand that a product containing partially hydrogenated
    vegetable oil necessarily has trans fat, so even if an ingredient
    list has a curative effect in some cases, it might not here.
    Reid’s allegations of misrepresentations are plausible enough
    to survive a motion to dismiss.
    IV
    The district court also found that Reid’s claims for relief
    were preempted. The parties’ arguments invoke express and
    conflict preemption. Express preemption exists when a
    statute explicitly addresses preemption. See Chicanos Por La
    Causa, Inc. v. Napolitano, 
    558 F.3d 856
    , 863 (9th Cir. 2009).
    Conflict preemption applies when it is impossible to comply
    with both federal and state law or when state laws stand as
    obstacles to accomplishing federal objectives. See 
    id. As will
    be made clear, whether Reid’s claims are preempted turns on
    our interpretation of the FDA’s actions. The preemption
    analysis turns on whether the challenged statements are
    authorized by the FDA’s regulations or other pronouncements
    of similar legal effect. See Holk v. Snapple Beverage Corp.,
    
    575 F.3d 329
    , 339–40 (3d Cir. 2009). Before analyzing the
    12               REID V. JOHNSON & JOHNSON
    statements at issue, we first set forth the statutory and
    regulatory framework.
    A
    The Nutritional Labeling and Education Act (“NLEA”)
    amended the Food, Drug, and Cosmetic Act (“FDCA”) to
    “establish[] uniform food labeling requirements, including the
    familiar and ubiquitous Nutrition Facts Panel found on most
    food packages.” 
    Lily, 743 F.3d at 664
    . The “NLEA also
    provides that no state may ‘directly or indirectly establish any
    requirement for the labeling of food that is not identical’ to
    the federal requirements.” 
    Id. at 664–65
    (quoting 21 U.S.C.
    § 343-1(a)(5)) (ellipsis omitted). “The phrase ‘not identical
    to’ means ‘that the State requirement directly or indirectly
    imposes obligations or contains provisions concerning the
    composition or labeling of food that are not imposed by or
    contained in the applicable federal regulation or differ from
    those specifically imposed by or contained in the applicable
    federal regulation.’” 
    Id. at 665
    (quoting 21 C.F.R.
    § 100.1(c)(4)) (alteration marks omitted). The NLEA also
    provides, however, that it does not preempt any state law
    unless the law is “expressly preempted.”2 
    Holk, 575 F.3d at 337
    –38. The NLEA does not preempt state law-based causes
    of action that are identical to the federal labeling
    requirements. See POM 
    Wonderful, 134 S. Ct. at 2238
    (“[B]y
    taking care to mandate express preemption of some state
    laws, Congress if anything indicated that it did not intend the
    FDCA to preclude requirements arising from other sources.”
    (emphasis added)); Farm Raised Salmon Cases, 
    175 P.3d 1170
    , 1178–84 (Cal. 2008).
    2
    Other federal laws, however, may still preempt labeling claims. See
    
    Holk, 575 F.3d at 336
    & n.4.
    REID V. JOHNSON & JOHNSON                    13
    Under the FDA regulations, the general rule is that
    “nutrient content claims” are not permitted on food labels.
    Nutrient content claims are statements that “expressly or
    implicitly characterize[] the level of a nutrient.” 21 C.F.R.
    § 101.13(b). However, the regulations do authorize some
    nutrient content claims. These include statements about the
    amount or percentage of a nutrient that are consistent with the
    labeling regulations (e.g., “less than 3 g of fat per serving”),
    similar statements that include a disclaimer (e.g., “only 200
    mg of sodium per serving, not a low sodium food”), or
    statements that do not characterize the level of nutrient and
    are not false or misleading (e.g., “100 calories”). 
    Id. § 101.13(i).
    For authorized nutrient content claims,
    statements may use “[r]easonable variations in the spelling of
    terms . . . and their synonyms” provided that they “are not
    misleading (e.g., ‘hi’ or ‘lo’).” 
    Id. § 101.13(b)(4).
    In addition to regulating nutrient content claims, FDA
    regulations require labels to include the familiar “Nutrition
    Facts” box, dubbed the “nutrition label” by federal
    regulations. Companies are required to disclose information
    about the presence of specified nutrients in this label. 
    Id. § 101.9(c).
    Though the nutrition label clearly contains
    information about nutrient content, the claims made in it are
    not considered “nutrient content claims” for the purposes of
    FDA regulations. See 
    id. § 101.13(c).
    While a required
    statement inside a nutrition label escapes regulations reserved
    for nutrient content claims, the identical statement outside of
    the nutrition label is still considered a nutrient content claim
    and is therefore subject to section 101.13. As a result, a
    requirement to state certain facts in the nutrition label is not
    a license to make that statement elsewhere on the product.
    14              REID V. JOHNSON & JOHNSON
    FDA regulations specifically address trans fat. They
    provide that trans fat should generally be disclosed in the
    nutrition label “except that label declaration of trans fat
    content information is not required for products that contain
    less than 0.5 grams of total fat in a serving if no claims are
    made about fat, fatty acid or cholesterol content.” 
    Id. § 101.9(c)(2)(ii).
    The regulation further provides:
    If the serving contains less than 0.5 gram, the
    content, when declared, shall be expressed as
    zero. Except as provided for [under the
    provisions allowing for simplified format
    labeling], if a statement of the trans fat
    content is not required and, as a result, not
    declared, the statement “Not a significant
    source of trans fat” shall be placed at the
    bottom of the table of nutrient values.
    
    Id. Outside the
    nutrition label, claimants may make nutrient
    content claims such as “fat free,” “no fat,” “zero fat,” or
    “negligible source of fat” on labels where the food contains
    less than 0.5 grams of fat per serving and certain other
    conditions are met. 
    Id. § 101.62(b).
    There is a parallel
    regulation permitting similar claims about “saturated fat,” see
    
    id. § 101.62(c),
    but not about “trans fat.” The FDA
    considered authorizing a “trans fat free” claim but decided
    not to enact the regulation in light of “insufficient scientific
    information.” See Food Labeling: Trans Fatty Acids in
    Nutrition Labeling, Nutrient Content Claims, Health Claims,
    68 Fed. Reg. 41,434, 41,464–65 (July 11, 2003).
    REID V. JOHNSON & JOHNSON                    15
    In addition to nutrient content claims, the FDA has
    specifically authorized some health claims. See 21 C.F.R.
    § 101.14. Such claims, however, must be “complete, truthful,
    and not misleading.” 
    Id. § 101.14(d)(2)(iii).
    These
    specifically include plant stanol esters health claims. 
    Id. § 101.83.
    The applicable regulation states:
    A health claim associating diets that include
    plant sterol/stanol esters with reduced risk of
    heart disease may be made on the label or
    labeling of a food . . . provided that . . . [t]he
    claim states that diets that include plant
    sterol/stanol esters “may” or “might” reduce
    the risk of heart disease [and] . . . [t]he claim
    specifies the daily dietary intake of plant
    sterol or stanol esters that is necessary to
    reduce the risk of [coronary heart disease or
    “CHD”] and the contribution one serving of
    the product makes to the specified daily
    dietary intake level. Daily dietary intake
    levels of plant sterol and stanol esters that
    have been associated with reduced risk of
    [CHD] are . . . 3.4 g or more per day of plant
    stanol esters. . . . The claim [must also
    specify] that the daily dietary intake of plant
    sterol or stanol esters should be consumed in
    two servings eaten at different times of the
    day with other foods.
    
    Id. § 101.83(c)(2).
    The claim may also “state that the
    relationship between intake of diets that include plant
    sterol/stanol esters and reduced risk of heart disease is
    through the intermediate link of ‘blood cholesterol’ or ‘blood
    total and LDL cholesterol.’” 
    Id. § 101.83(d)(2).
    The
    16              REID V. JOHNSON & JOHNSON
    regulations further provide that the authorization only applies
    to foods that meet the 1.7 grams/serving threshold (i.e., two
    servings amounting to 3.4 grams) and “contains 10 percent or
    more of the Reference Daily Intake or the Daily Reference
    Value for vitamin A, vitamin C, iron, calcium, protein, or
    fiber per reference amount customarily consumed prior to any
    nutrient addition.” 
    Id. §§ 101.83(c)(2)(iii)(A)(2),
    (D),
    101.14(e)(6).
    In 2003, the FDA issued a letter in response to a request
    from Cargill Health & Food Technologies that the FDA state
    its intention not to enforce certain requirements of the plant
    stanol esters regulation. In the letter, the FDA indicated that
    it “will consider exercising enforcement discretion with
    regard to the use of a claim about reduced risk of CHD in the
    labeling of phystosterol containing food” that did not meet
    the requirements in the regulation. Among other things, the
    FDA also indicated that qualifying health claims had to relate
    to foods containing 400 mg per serving, had to specify “that
    the daily dietary intake of phytosterols that may reduce the
    risk of CHD is 800 milligrams (mg) or more per day,” and the
    food had to satisfy the regulation’s other requirements
    (suchas the 10 percent nutrient requirement). See 
    id. § 101.83(c)(2)(iii)(B)–(D).
    The FDA has also recognized that “a heart symbol” can
    constitute a health claim. 
    Id. § 101.14(a)(1).
    Where a health
    claim is authorized and “where any graphic material (e.g., a
    heart symbol) constituting an explicit or implied health claim
    appears on the label or labeling, the reference statement or the
    complete claim shall appear in immediate proximity to such
    graphic material.” 
    Id. § 101.14(d)(2)(iv).
    Most health claims
    based on the benefits of consuming the substance “must
    specify the daily dietary intake necessary to achieve the
    REID V. JOHNSON & JOHNSON                          17
    claimed effect, as established in the regulation authorizing the
    claim.” 
    Id. § 101.14(d)(2)(vii).
    Health claims must also
    conform “to all specific provisions in the appropriate
    section.” 
    Id. § 101.14(e)(2).
    B
    The challenged statements can be grouped into two
    categories: (1) trans fat nutrient content claims; and (2) plant
    stanol esters-based health claims.3
    1
    The preemption analysis of the “No Trans Fat” claim
    turns on whether the statement is authorized by FDA
    regulations. These regulations create two categories of
    nutrient content claims, “expressed” and “implied,” imposing
    a different set of requirements for each type of claim. 21
    C.F.R. § 101.13(b)(1)–(2). The “No Trans Fat” claim is an
    expressed claim because it “is [a] direct statement about the
    level . . . of [trans fat] in the food.” 
    Id. § 101.13(b)(1).
    FDA
    regulations authorize expressed claims that “do[] not in any
    way implicitly characterize the level of the nutrient in the
    food and [are] not false or misleading in any respect (e.g.,
    ‘100 calories’ or ‘5 grams of fat’).” See 
    id. § 101.13(i)(3).
    3
    Reid also challenges McNeil’s use of various symbols on Benecol’s
    label. McNeil’s ability to use these symbols depends on its authority to
    make the trans fat nutrient content claims and plant stanol esters-based
    health claims. Because we find that none of Reid’s other claims are
    preempted, his challenges to these symbols also survive. Furthermore,
    Reid acknowledges that his contention that Benecol is a misbranded
    cholesterol drug is only viable “[a]bsent regulatory allowance,” meaning
    that it also rises or falls with his other health claims.
    18                  REID V. JOHNSON & JOHNSON
    The FDA has provided guidance about whether a “No
    Trans Fat” nutrient content claim is permissible for products
    containing small amounts of trans fat. In one of its warning
    letters,4 the FDA indicated that “No Trans Fat” is “an
    unauthorized nutrient content claim . . . which has not been
    defined by FDA.” The agency noted that the letter’s recipient
    could “make a truthful statement on a product’s label that
    specifies the amount of trans fat per serving.” See 21 C.F.R.
    § 101.13(i). In a second letter, the FDA similarly indicated
    that “trans fat-free” is an “unauthorized nutrient content
    claim.” We defer to the FDA’s interpretation of its own
    rules, even if the product of an informal and non-final
    process,5 unless its interpretation is clearly erroneous. See
    Pub. Lands for the People, Inc. v. U.S. Dep’t of Agric.,
    
    697 F.3d 1192
    , 1199 (9th Cir. 2012) (“Where an agency
    interprets its own regulation, even if through an informal
    process, its interpretation of an ambiguous regulation is
    4
    Reid argues that the district court erred by failing to take judicial notice
    of the warning letters and that we should take judicial notice of the letters.
    Judicial notice, however, is unnecessary for materials establishing the
    legal principles governing a case. Von Saher v. Norton Simon Museum of
    Art at Pasadena, 
    592 F.3d 954
    , 960 (9th Cir. 2010); see also Von Koenig
    v. Snapple Beverage Corp., 
    713 F. Supp. 2d 1066
    , 1073 (E.D. Cal. 2010)
    (considering FDA warning letters for the purposes of a motion to dismiss).
    Accordingly, it is not necessary for us to take judicial notice of the
    warning letters in order to consider them. Because we do consider the
    letters, it is also unnecessary for us to determine whether the district court
    erred by failing to do so.
    5
    The FDA uses warning letters, among other enforcement measures, to
    police objectionable food and beverage labels in lieu of a preapproval
    process. POM 
    Wonderful, 134 S. Ct. at 2239
    . Although “informal and
    advisory,” the FDA issues warning letters to obtain voluntary and prompt
    corrective action for what it considers to be significant violations of the
    FDCA. The warning letters are publicly available on the FDA’s website.
    REID V. JOHNSON & JOHNSON                     19
    controlling under Auer [v. Robbins, 
    519 U.S. 452
    , 461
    (1997),] unless plainly erroneous or inconsistent with the
    regulation.” (internal citations and alteration marks omitted)),
    cert. denied, 
    133 S. Ct. 1464
    (2013).
    A nutrient content claim fails if it is “false or misleading
    in any respect.” 21 C.F.R. § 101.13(i)(3) (emphasis added).
    Because Benecol contains some trans fat (between 0 and 0.5
    grams per serving), its “No Trans Fat” claim is misleading in
    at least one respect. The structure of FDA labeling
    regulations bolsters this conclusion. As noted, under section
    101.62(b)–(c), the FDA has expressly allowed “No Fat” and
    “No Saturated Fat” claims for products that contain less than
    0.5 grams of fat or saturated fat per serving. By contrast, the
    FDA explicitly decided not to authorize a “No Trans Fat”
    claim in light of a lack of scientific information. See 68 Fed.
    Reg. 41,434, 41,464–65. If a “No Trans Fat” claim is not
    “false or misleading” under 21 C.F.R. § 101.13 (i)(3), a “No
    Fat” or “No Saturated Fat” claim cannot be treated
    differently. This would mean that section 101.62(b)–(c) is
    redundant: If section 101.13(i)(3) authorizes “No Fat” and
    “No Saturated Fat” claims for products with small amounts
    of fat or saturated fat, then why would the FDA go to the
    trouble of promulgating a separate regulation expressly
    allowing these claims? It would be incongruous to have the
    same rule for both “No Fat”/“No Saturated Fat” and “No
    Trans Fat” claims, as the former is expressly permitted while
    the latter is not due to a lack of scientific consensus about the
    dangers of trans fat.          Thus, the FDA’s reading of
    section 101.13(i)(3)—that the regulation does not authorize
    “No Trans Fat” claims—makes the most sense of the overall
    labeling regime, as it gives meaning to section 101.62(b)–(c).
    20             REID V. JOHNSON & JOHNSON
    McNeil says its “No Trans Fat” claim is the equivalent of
    its statement on the nutrition label that Benecol contains 0
    grams of trans fat per serving, a statement it must make under
    section 101.9(c)(2)(ii). FDA regulations allow a label to
    include synonyms of authorized nutrient content claims, 
    id. § 101.13(b)(4),
    which McNeil claims is exactly what its “No
    Trans Fat” claim is. But, as noted, claims required on a
    nutrition label under section 101.9(c), like Benecol’s “0
    grams trans fat per serving” claim, are not nutrient content
    claims and thus are not covered by section 101.13(b)(4)’s
    synonym rule. That McNeil must say Benecol contains 0
    grams of trans fat per serving on its nutrition label makes no
    difference here.
    The district court found that “No Trans Fat” was not
    misleading, as any reasonable consumer would infer that
    Benecol contains trans fat, given that partially hydrogenated
    vegetable oil is disclosed as an ingredient. As noted,
    however, there is no reason to believe that consumers
    understand that partially hydrogenated vegetable oil contains
    trans fat. Consequently, we conclude that Reid’s claims for
    relief are not preempted to the extent they are predicated on
    McNeil’s trans fat statements.
    2
    As for the plant stanol esters and cholesterol reduction
    claims, McNeil admits that the claims fall short of 21 C.F.R.
    § 101.83(c)(2), which permits health claims related to plant
    stanol esters that meet certain requirements. These health
    claims do, however, meet the criteria described in the FDA’s
    2003 letter about its enforcement intentions. McNeil argues
    that, in spite of its noncompliance with section 101.83(c)(2),
    the 2003 letter “created [a] federal policy preempting state
    REID V. JOHNSON & JOHNSON                            21
    law.” We must decide whether this letter is entitled to
    preemptive effect.6
    The Supremacy Clause gives federal authorities the power
    to preempt state law by declaring that the “Constitution, and
    the Laws of the United States . . . [are] the supreme Law of
    the Land.” U.S. Const. art. VI, cl. 2. “The phrase ‘Laws of
    the United States’ encompasses both federal statutes
    themselves and federal regulations that are properly adopted
    in accordance with statutory authorization.” City of New York
    v. FCC, 
    486 U.S. 57
    , 63 (1988). Thus, “a federal agency
    acting within the scope of its congressionally delegated
    authority may . . . render unenforceable state or local laws
    that are otherwise not inconsistent with federal law.” 
    Id. at 64
    (internal quotation marks omitted). Because the
    Supremacy Clause privileges only “[l]aws of the United
    States,” an agency pronouncement must have the force and
    effect of federal law to have preemptive force. See Fellner v.
    Tri-Union Seafoods, LLC, 
    539 F.3d 237
    , 245 (3d Cir. 2008);
    Wabash Valley Power Ass’n, Inc. v. Rural Electrification
    Admin., 
    988 F.2d 1480
    , 1485–86 (7th Cir. 1993). Beyond the
    constitutional text, there is nothing to guide us in determining
    whether an agency action creates “law” for Supremacy
    Clause purposes.
    6
    Although Reid suggests that the cholesterol reduction claims are not
    authorized even if the 2003 letter is entitled to preemptive force, the FDA
    explicitly found that “[t]he scientific evidence establishes that including
    plant sterol/stanol esters in the diet helps lower blood total and LDL
    cholesterol levels.” 21 C.F.R. § 101.83(b)(2). Thus, it appears that if
    Benecol contains the minimum amounts necessary to make the health
    claims at issue, it is consequently also proven to reduce cholesterol as far
    as the FDA is concerned.
    22             REID V. JOHNSON & JOHNSON
    The Supreme Court has created a framework for deciding
    whether Congress contemplated that a particular agency
    pronouncement would have the force and effect of federal
    law in the Chevron context. Under Chevron, when an agency
    fills a gap in a statute that Congress explicitly or implicitly
    left open for that agency to fill, its “regulations are given
    controlling weight unless they are arbitrary, capricious, or
    manifestly contrary to the statute.” Chevron, U.S.A., Inc. v.
    Natural Res. Def. Council, Inc., 
    467 U.S. 837
    , 843–44 (1984).
    In other words, it’s the agency’s job—not ours—to fill with
    “law” the statutory interstices Congress left open. We
    intervene only when in doing so the agency has acted
    unreasonably, exceeded the authority Congress delegated to
    it, or failed to observe required procedures. But only those
    agency pronouncements that Congress intended to carry the
    “force of law” require Chevron-level deference, and we
    determine whether an agency spoke with such force under the
    standard set forth in United States v. Mead Corp., 
    533 U.S. 218
    , 234 (2001), and its progeny.
    We conclude that this standard is pertinent to the
    preemption analysis here. In both Chevron and preemption
    contexts, a central inquiry is whether an agency has validly
    created federal law pursuant to the gap-filling power
    delegated to it by Congress. In the former situation, we
    decide whether Chevron-level deference is due because
    Congress intended for the agency’s pronouncement to carry
    the force of law; in the latter, we decide whether state law is
    preempted because Congress intended for the agency’s
    pronouncement to carry the binding and exclusive force of
    federal law. Creation of federal law should demand at least
    the same formality for purposes of preemption as it does for
    REID V. JOHNSON & JOHNSON                          23
    purposes of Chevron deference.7 We therefore join the Third
    Circuit in declining to afford preemptive effect to agency
    actions that do not carry the force of law under Mead and its
    progeny. See 
    Fellner, 539 F.3d at 245
    .
    Applying this rule here, the 2003 letter lacks preemptive
    effect. While some agency actions short of notice-and-
    comment rulemaking may have the force of law,
    “enforcement guidelines” like those set forth in the FDA’s
    letter “are beyond the Chevron pale.” 
    Mead, 533 U.S. at 234
    .
    To begin, the letter itself does not indicate that the FDA
    “set out with a lawmaking pretense in mind.” 
    Id. at 233.
    The
    letter is couched in tentative and non-committal terms. The
    letter does not promise that the FDA will not enforce its
    existing regulation applicable to health claims about plant
    stanol esters. Instead, the letter provides that the FDA
    “intends to consider the exercise of enforcement discretion”
    in certain circumstances. The FDA has separately stated,
    however, that such letters indicate that it “does not intend to
    object to the use of the claim specified in the letter, provided
    that the products that bear the claim are consistent with the
    stated criteria.” Thus, the FDA appears to regard the letter as
    providing firmer guidance regarding its own enforcement
    discretion than the 2003 letter’s tentative language would
    suggest. Still, the letter’s plain language does not authorize
    any health claims that conflict with the FDA’s existing plant
    stanol esters rule. The letter only expresses the FDA’s
    7
    We do not reach the question of how “the presumption against
    preemption,” and the federalism concerns that animate it, might further
    guide our evaluation of the preemptive effect of an action by the FDA
    implementing the FDCA. See Wyeth v. Levine, 
    555 U.S. 555
    , 565 (2009);
    Bates v. Dow Agrosciences LLC, 
    544 U.S. 431
    , 449 (2005).
    24             REID V. JOHNSON & JOHNSON
    “intent” to “consider” enforcement discretion while the FDA
    continues deliberations regarding whether a change to that
    rule is appropriate. The FDA’s equivocal language regarding
    its intention to foreclose its own ability to enforce non-
    compliance with existing rules is a good indication that it did
    not intend to foreclose state law challenges to health claims
    that do not comply with existing rules.
    Reading the FDA’s 2003 letter in the context of the
    FDCA’s statutory scheme also militates against a finding of
    preemption. The FDA can approve health claims effective
    immediately, pending consideration of public comment and
    publication of a final regulation. 21 U.S.C. § 343(r)(7). In
    fact, the FDA issued its 2000 plant stanol esters rule pursuant
    to this authority, and thereby approved of certain health
    claims about plant stanol esters effective immediately. Food
    Labeling: Health Claims; Plant Sterol/Stanol Esters and
    Coronary Heart Disease, 65 Fed. Reg. 54,686, 54,713–54,714
    (Sept. 8, 2000). The fact that the FDA did not invoke this
    authority in setting forth the enforcement criteria in the 2003
    letter also indicates that the FDA did not intend to issue a
    standard with the force of law that would foreclose the public
    protections under state law food labeling and false advertising
    claims.
    Similarly, we are not convinced that Congress intended
    for an FDA pronouncement like that set forth in the 2003
    letter to have the binding and exclusive effect of federal law.
    Giving the 2003 letter preemptive effect would effectively
    open an additional shortcut allowing the FDA to authorize
    health claims without notice and comment. Shortcuts are not
    inherently bad and, again, some agency actions short of
    notice-and-comment rulemaking may have the binding and
    exclusive force of federal law. But Congress demonstrated
    REID V. JOHNSON & JOHNSON                    25
    that it knew how to create such a shortcut in enacting
    21 U.S.C. § 343(r)(7), indicating that Congress did not intend
    to create an additional, unstated means of rulemaking by way
    of letters tentatively stating the FDA’s enforcement
    discretion.
    Finally, while not determinative of our decision, we are
    concerned that allowing the FDA effectively to authorize
    health claims by way of statements of its enforcement policy
    could place those authorizations beyond judicial review. This
    is so because agency decisions not to take enforcement action
    are usually committed to agency discretion by law and thus
    generally not subject to judicial review under the
    Administrative Procedure Act. See 5 U.S.C. § 701(a)(2);
    Heckler v. Chaney, 
    470 U.S. 821
    , 828–35 (1985).
    Foreclosing challenges to, and judicial review of, the FDA’s
    health claim approvals likely would not serve Congress’s
    goals in the FDCA of increasing the protections of public
    health and safety. See POM 
    Wonderful, 134 S. Ct. at 2234
    (“The FDCA statutory regime is designed primarily to protect
    the health and safety of the public at large.”). Indeed,
    Congress was careful to preserve judicial review of the
    FDA’s actions even where the FDA makes a proposed
    regulation effective immediately, pending consideration of
    public comment and publication of a final regulation.
    21 U.S.C. § 343 (r)(7) (“Such proposed regulations shall be
    deemed final agency action for purposes of judicial review.”).
    For these reasons, we hold that Reid’s claims for relief are
    not preempted by the FDA’s 2003 enforcement letter. We
    note that this conclusion, of course, in no way indicates that
    Reid’s state law claims have merit.
    26              REID V. JOHNSON & JOHNSON
    V
    McNeil also asserts that the district court erred by
    rejecting its argument that Reid’s action is barred by the
    primary jurisdiction doctrine. McNeil argues that the primary
    jurisdiction doctrine applies here because “FDA expertise is
    required to resolve the question of whether Benecol contains
    sufficient plant stanol esters to reduce cholesterol and
    whether the insignificant amount of trans fats undermine the
    positive impact of plant stanol esters.” McNeil further
    suggests that the FDA is in the process of an “ongoing
    regulatory review” pending the completion of its final plant
    stanol esters rule.
    “The primary jurisdiction doctrine allows courts to stay
    proceedings or to dismiss a complaint without prejudice
    pending the resolution of an issue within the special
    competence of an administrative agency.” Clark v. Time
    Warner Cable, 
    523 F.3d 1110
    , 1114 (9th Cir. 2008). It “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.” GCB Commc’ns, Inc.
    v. U.S. S. Commc’ns, Inc., 
    650 F.3d 1257
    , 1263–64 (9th Cir.
    2011) (internal quotation marks omitted). “It is useful . . . in
    instances where the federal courts do have jurisdiction over
    an issue, but decide that a claim requires resolution of an
    issue of first impression, or of a particularly complicated
    issue that Congress has committed to a regulatory agency.”
    
    Id. at 1264
    (internal quotation marks omitted). It applies in
    “limited circumstances” and is “not designed to secure expert
    advice from agencies every time a court is presented with an
    issue conceivably within the agency’s ambit.” 
    Clark, 523 F.3d at 1114
    (internal quotation marks omitted).
    REID V. JOHNSON & JOHNSON                            27
    McNeil’s argument has some facial appeal because the
    preemption issues in this case turn on the interpretation and
    applicability of the FDA’s regulations and other actions.
    Nonetheless, the argument is ultimately unpersuasive. The
    FDA has already addressed some issues that McNeil
    identifies as requiring further regulatory review. For
    example, the FDA has specifically declined to authorize “No
    Trans Fat” nutrient content claims, and has issued warning
    letters to companies making such claims.
    Reid’s claims present no issues of first impression, as the
    FDA has already addressed the substantive issues raised here.
    Regarding plant stanol esters, there is already an interim final
    rule on the books. Plus, it has been over a decade since the
    FDA indicated that it would issue a new final plant stanol
    esters rule.8 Cf. Baykeeper v. NL Indus., Inc., 
    660 F.3d 686
    ,
    692 (3d Cir. 2011) (concluding that there was little risk of
    inconsistent rulings that would support the application of the
    primary jurisdiction doctrine where the agency had not issued
    any rulings for several years). Similarly, there is no
    indication that the FDA is contemplating authorizing “No
    Trans Fat” statements.9 The issue that this case ultimately
    8
    Any final rule might not govern the preemption analysis for the time
    period covered by Reid’s action. See Elim Church of God v. Harris,
    
    722 F.3d 1137
    , 1141–42 (9th Cir. 2013).
    9
    The FDA has shown no signs of backing away from its determination
    that “trans fat free” nutrient content claims are not authorized. It stated:
    Since 2003, both controlled trials and observational
    human studies published on trans fatty acid
    consumption have consistently confirmed the adverse
    effects of trans fatty acid consumption on intermediary
    risk factors (e.g., serum lipoproteins) and the increased
    risk of CHD . . . . [Several notable] expert panels all
    28                  REID V. JOHNSON & JOHNSON
    turns on is whether a reasonable consumer would be misled
    by McNeil’s marketing, which the district courts have
    reasonably concluded they are competent to address in similar
    cases. See, e.g., 
    Chacanaca, 752 F. Supp. 2d at 1124
    .
    The “deciding factor” in determining whether the primary
    jurisdiction doctrine should apply is “efficiency.” Rhoades
    v. Avon Prods., Inc., 
    504 F.3d 1151
    , 1165 (9th Cir. 2007).
    Because the FDA has made considered judgments on the
    legal issues in this case, we reject McNeil’s argument. See 
    id. Consequently, the
    district court properly declined to dismiss
    or stay the case pursuant to the primary jurisdiction doctrine.
    VI
    McNeil further argues that Reid’s action is barred by
    California’s judicial abstention doctrine. See Alvarado v.
    Selma Convalescent Hosp., 
    153 Cal. App. 4th 1292
    ,
    1297–1303 (2007). Having dismissed Reid’s claims on
    preemption grounds, the district court never addressed this
    issue. We therefore leave it for the district court’s
    consideration on remand.
    concluded that there is no threshold intake level for
    industrially-produced trans fat that would not increase
    an individual’s risk of CHD, or adverse effects on risk
    factors for CHD. Moreover, the panels also agree that
    trans fatty acids have a stronger effect on the risk of
    CHD than saturated fatty acids.
    Tentative Determination Regarding Partially Hydrogenated Oils; Request
    for Comments and for Scientific Data and Information, 78 Fed. Reg.
    67,169, 67,172 (Nov. 8, 2013). Accordingly, the FDA has tentatively
    concluded that there is no scientific consensus that partially hydrogenated
    oils, as the primary dietary source of artificial trans fat, are safe for use in
    food. See 
    id. at 67,173.
                    REID V. JOHNSON & JOHNSON                      29
    VII
    Reid’s basic contention in this case is that Benecol is
    improperly being marketed and sold to consumers as health
    food. At this early stage of the proceedings, we cannot say
    whether he is right or wrong. It is clear, however, that
    Benecol’s label prominently states that Benecol contains “No
    Trans Fat.” That statement is not true. Although Benecol
    may contain a relatively small amount of trans fat per serving,
    the FDA found that the existing scientific evidence was not
    sufficient for it to approve “No Trans Fat” claims. Despite
    this finding, McNeil made such a claim. Given that the FDA
    has indicated in warning letters that claims like “No Trans
    Fat” are not authorized, McNeil cannot shield itself from
    liability with the FDA’s regulations. We also hold that an
    FDA letter stating a tentative enforcement policy does not
    preempt state law. Consequently, we reverse the district
    court’s decision dismissing Reid’s action. We affirm the
    district court’s decision to the extent that it declined to invoke
    the primary jurisdiction doctrine. We remand for further
    proceedings consistent with this opinion.
    AFFIRMED in part, REVERSED in part, and
    REMANDED.
    Parties shall bear their own costs.
    

Document Info

Docket Number: 12-56726

Citation Numbers: 780 F.3d 952

Filed Date: 3/13/2015

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (21)

Holk v. Snapple Beverage Corp. , 575 F.3d 329 ( 2009 )

Fellner v. Tri-Union Seafoods, L.L.C. , 539 F.3d 237 ( 2008 )

Rhoades v. Avon Products, Inc. , 504 F.3d 1151 ( 2007 )

Clark v. Time Warner Cable , 523 F.3d 1110 ( 2008 )

Util. L. Rep. P 13,930 Wabash Valley Power Association, Inc.... , 988 F.2d 1480 ( 1993 )

Baykeeper v. NL Industries, Inc. , 660 F.3d 686 ( 2011 )

GCB Communications, Inc. v. U.S. South Communications, Inc. , 650 F.3d 1257 ( 2011 )

United States v. Mead Corp. , 121 S. Ct. 2164 ( 2001 )

Williams v. Gerber Products Co. , 552 F.3d 934 ( 2008 )

Chicanos Por La Causa, Inc. v. Napolitano , 558 F.3d 856 ( 2009 )

Von Saher v. Norton Simon Museum of Art at Pasadena , 592 F.3d 954 ( 2010 )

North County Communications Corp. v. California Catalog & ... , 594 F.3d 1149 ( 2010 )

HENRY A. v. Willden , 678 F.3d 991 ( 2012 )

Von Koenig v. Snapple Beverage Corp. , 713 F. Supp. 2d 1066 ( 2010 )

Heckler v. Chaney , 105 S. Ct. 1649 ( 1985 )

City of New York v. Federal Communications Commission , 108 S. Ct. 1637 ( 1988 )

Auer v. Robbins , 117 S. Ct. 905 ( 1997 )

Bates v. Dow Agrosciences LLC , 125 S. Ct. 1788 ( 2005 )

Wyeth v. Levine , 129 S. Ct. 1187 ( 2009 )

POM Wonderful LLC v. Coca-Cola Co. , 134 S. Ct. 2228 ( 2014 )

View All Authorities »