Recent Ninth Circuit Decisions In False Advertising Consumer Class Action Cases May Prevent Preemption And Relegate The Primary Jurisdiction Doctrine To Second-Class Status

In two recent decisions, Reid v. Johnson & Johnson, __ F.3d __, Case No. 12-56726 (9th Cir. March 13, 2015) and Astiana v. The Hain Celestial Group, Inc., __ F.3d __, Case No. 12-17596 (9th Cir. April 10, 2015), the Ninth Circuit either rejected or minimized the use of preemption and primary jurisdiction as defenses to allegations of false labeling of food and cosmetics.

Both of these cases involved allegations of false advertising brought under California's consumer protection statutes, including the Unfair Competition Law and False Advertising Law. In Reid, the plaintiff alleged that the food product Benecol was falsely advertised because the manufacturer claimed the product (1) had "No Trans Fat" when, in fact, it contained less than 0.5 grams of trans fat per serving, and (2) contained plant stanol esters that could lead to reduced cholesterol. In Astiana, the plaintiff alleged that the cosmetic products she purchased were falsely advertised as "all natural" or "pure natural" even though they contained chemicals that were, allegedly, not natural. Both Reid and Astiana filed putative class actions against the defendants, and, in both cases, the defendants successfully moved to dismiss the claims in the district court. The plaintiffs in both cases appealed, resulting in these opinions.

Reid and Astiana both focus on two separate (though related) arguments often used by defendants in these kinds of cases: federal preemption and the primary jurisdiction doctrine. We address each in turn.

Federal Preemption

In its essence, federal preemption holds that, when Congress intentionally creates a law setting forth nationwide standards, states cannot (through their own laws) create separate standards that exceed or conflict with the federal law. When it comes to food and cosmetics, the applicable law is the Food, Drug, and Cosmetic Act ("FDCA"), which allows the Food and Drug Administration (the "FDA") to promulgate regulations governing how manufacturers must label their products. A defendant invoking preemption in response to an allegation of false advertising is essentially arguing that, because the advertising satisfies the federal standards established by the FDA, no liability can be imposed through the litigation brought under state consumer protection laws.

The defendants in Reid and Astiana both tried to invoke federal preemption as a defense to the false advertising claims. The defendant in Reid argued that, because the FDA's regulations...