The Ninth Circuit affirmed the dismissal of a putative class action accusing Trader Joe’s of mislabeling its chicken packaging.  Webb v. Trader Joe’s Co., No. 19-56389, 2021 WL 2275265 (9th Cir. June 4, 2021).

Plaintiff claims she purchased “All Natural Boneless Chicken Breasts,” “All Natural Chicken Thighs,” and “All Natural Chicken Wings,” (the Products) from various Trader Joe’s locations. The Products were each marked with a label stating that they contained “[u]p to 5% retained water.” Webb had the Products examined by a food testing lab, which concluded that the Products contained more retained water than claimed by Trader Joe’s labels.

Plaintiff Webb argued that she used a data collection protocol that produced different percentages of retained water than those displayed on Trader Joe’s poultry labels, and thus Trader Joe’s labels were misleading in violation of state law. But there is federal law regulating poultry labeling and retained water measurement protocols. See 21 U.S.C. § 467e.  The federal Poultry Products Inspection Act (PPIA) regulates the retained water data collection process and label production for covered poultry products. Under the PPIA, Trader Joe’s was required to maintain its retained water data collection protocol on file and make it available to the Food Safety and Inspection Service (FSIS) for review. FSIS could require changes to the protocol within 30 days of receiving notice of a new or revised protocol. The retained water claims on the Products’ labels were also inspected by FSIS because the generic retained water claims were affixed alongside special statements and were “required to [be] submit[ed] for evaluation.”  See 78 Fed. Reg. 66826-01, 66827 (Nov. 7, 2013).

Federal law expressly preempts claims relating to regulated labels that would impose requirements “in addition to, or different than those” already required by federal law. Because Webb’s state law claims seek to impose the requirements of her retained water protocol in addition to Trader Joe’s FSIS-required protocol, her claims were preempted.  Specifically, and first, allowing Webb to impose her retained water protocol on Trader Joe’s via state law would require Trader Joe’s to conform to a different data collection process than the protocol that was properly developed and made available to FSIS for review as required by federal law. Second, requiring Trader Joe’s to change its labeling to be consistent with plaintiff’s retained water data would require changes to poultry labels that were already approved by FSIS. Because Webb’s state law claims seek to impose requirements “in addition to” those outlined in the PPIA, her claims are preempted.

Also of note is the affirmance of the district court’s decision to dismiss with prejudice. Here, Webb claimed there was a “narrow gap” through which her claims could survive: she was “suing for conduct that violates” the PPIA but not “because the conduct violates” the PPIA (rather, because it violates applicable state law), so her claims might not be preempted.  But, as discussed, federal law does not allow Webb to impose a different data collection protocol on Trader Joe’s. So the only possible “narrow gap” where Webb’s claims might not be preempted would be if she could plausibly claim she used Trader Joe’s exact data collection protocol and yet obtained different results, thereby evincing that Trader Joe’s is misrepresenting its data to FSIS. But she did not, and the protocol made available to FSIS was not even publicly accessible. Webb thus could not amend her complaint to claim that her retained water data collection protocol was the same as Trader Joe’s protocol without first getting information from Trader Joe’s itself.  The Ninth Circuit accordingly affirmed the district court’s dismissal with prejudice.