As we have briefly explored here, the Ninth Circuit has broadly construed Buckman implied preemption of state law claims pertaining to food, drugs, and medical devices, which are regulated under the federal Food, Drug, and Cosmetic Act (“FDCA”). Of particular note, the court held in PhotoMedex that Buckman “limits the ability of a private plaintiff to pursue claims under state law theories where such claims collide with the exclusive enforcement power of the federal government.” PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 924 (9th Cir. 2010). In Pom Wonderful, the Ninth Circuit put an expansive gloss on that holding, stating “PhotoMedex teaches that courts must generally prevent parties from undermining, through private litigation, the FDA’s considered judgments.” Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012). Nowhere has the Ninth Circuit stated that implied preemption is limited to federal statutory claims. That, however, was the implication of a recent district court opinion interpreting Pom Wonderful.  

In Khasin, the plaintiff filed a putative class action against Hershey under several California laws including the Unfair Competition Law, Business & Professions Code § 17200 et seq., the Consumers Legal Remedies Act, and the Beverly Song Act. Khasin v. The Hershey Co., 2012 WL 5471153 at * 1 (N.D. Cal. Nov. 9, 2012). Plaintiff alleged Hershey “engaged in misleading conduct by advertising and labeling several of its products in violation of the aforementioned laws and labeling requirements.” Hershey moved to dismiss the amended complaint, inter alia, because each of plaintiff’s claims was preempted by the FDCA.

In support of its position, Hershey argued that plaintiff’s claims were preempted under the Ninth Circuit’s ruling in Pom Wonderful. The Khasin court rejected this argument, noting that Pom Wonderful only recognized preemption of federal Lanham Act claims that require litigation of whether the alleged conduct violated the FDCA. Indeed, the Khasin court noted, Pom Wonderful remanded the California state law claims for determination of a standing issue. Thus, the district court held, Pom Wonderful did not preempt Khasin’s claims because they were based on state law.

The Khasin court’s refusal to apply Pom Wonderful to state law claims suggests that the Ninth Circuit preempted Lanham Act claims simply because they were federal in nature, but a close reading of Pom Wonderful indicates otherwise. In fact, the district court in Pom Wonderful actually preempted only a subset of Lanham Act claims regarding the names and labels of the juice drink at issue, because only those claims intruded upon the FDA’s comprehensive regulation of food and beverage naming and labeling. The Ninth Circuit’s decision to uphold the district court’s preemption ruling was “primarily guided … by Congress’s decision to entrust matters of juice beverage labeling to the FDA and by the FDA’s comprehensive regulation of that labeling.” “[U]nder our precedent, for a court to act when the FDA has not – despite regulating extensively in the area – would risk undercutting the FDA’s expert judgments and authority.” Importantly, though the court acknowledged that “a Lanham Act claim is barred when it would require a court to interpret ambiguous FDA regulations, that is not the only circumstance in which such a claim is barred. PhotoMedex teaches that courts must generally prevent private parties from undermining, through private litigation, the FDA’s considered judgments.” 

There is nothing in these broad statements to indicate that Buckman preemption is limited only to federal claims. The phrase “private litigation” surely encompasses state tort claims. Indeed, PhotoMedex specifically preempted state tort claims. And, while the Ninth Circuit remanded the state law claims in Pom Wonderful, it made clear it was doing so solely on the preliminary question of standing, leaving issues such as express (and, presumably, implied) preemption to be addressed by the district court on remand “as needed.” Thus, the broad language and procedural posture of Pom Wonderful strongly suggest the preemption principle it articulated properly applies with equal force to any state law claim alleging naming or labeling deficiencies, because the FDA alone is entitled to determine those deficiencies in the first instance. Yet the court in Khasin refused to apply Pom Wonderful at all, despite the fact that at least 3 of the 7 claims it allowed to proceed specifically alleged labeling defects. The Khasin court’s refusal to preempt those claims, solely because they sounded in state tort law, indicates an unduly narrow view of the true scope of Buckman preemption as set forth in Pom Wonderful.