RUDOLPH T. RANDA, District Judge.
This three-count complaint is a putative class action brought by Sean Regan against Sioux Honey Association Cooperative ("Sioux Honey"), the manufacturer of Sue Bee Clover Honey. In Count II, Regan alleges that the failure to disclose the absence of bee pollen in Sue Bee Clover Honey violates the labeling requirements associated with Wisconsin's so-called "Honey Standard." This claim is preempted by the Federal Food, Drug and Cosmetic Act ("FDCA"), as amended by the Nutrition Labeling and Education Act ("NLEA"), 21 U.S.C. § 341 et seq. The remaining claims are also subject to dismissal as discussed below.
With respect to preemption, Sioux Honey moves to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Preemption is an affirmative defense, so the "more appropriate motion would have been one under Rule 12(c)" for judgment on the pleadings because "plaintiffs have no duty to anticipate affirmative defenses." S.C. Johnson & Son, Inc. v. Transport Corp. of Am., Inc., 697 F.3d 544, 547 (7th Cir.2012); see also Bausch v. Stryker Corp., 630 F.3d 546, 561 (7th Cir.2010). Regan does not object to Sioux Honey's procedural error, and in any event, the issue of preemption is plainly implicated and even anticipated by the allegations in the complaint. Whatever the correct procedural label, judgment on the pleadings is warranted when "the well-pled facts of a complaint fail to show that the plaintiff is entitled to relief." Leimkuehler v. Am. United Life Ins. Co., 752 F.Supp.2d 974, 976 (S.D.Ind.2010) (discussing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). If claims are preempted, "dismissal is the proper outcome — but dismissal on the merits, with prejudice like other merits judgments, not dismissal for want of federal jurisdiction." Turek v. Gen. Mills, Inc., 662 F.3d 423, 425 (7th Cir.2011); see also Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 608 (6th Cir.2004).
The doctrine of preemption is based in the Supremacy Clause, which states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the Supreme Law of the land." U.S. Const., art. VI, cl. 2. There are three types of preemption: express preemption, conflict (or implied) preemption, and field (or complete) preemption. Hoagland v. Town of Clear
The NLEA was passed to "clarify and to strengthen [the FDA's] authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about the nutrients in foods." Nat'l Council for Improved Health v. Shalala, 122 F.3d 878, 880 (10th Cir.1997). The NLEA provides that "no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce" any "requirement for a food which is the subject of a standard of identity established under section 341 of this title that is not identical to such standard of identity or that is not identical to the requirement of section 343(g) of this title ..." 21 U.S.C. § 343-1(a)(1). With respect to federal "standards of identity," the Secretary of Health and Human Services has the authority to "promulgate regulations fixing and establishing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity, a reasonable standard of quality, or reasonable standards or fill of container." 21 U.S.C. § 341.
There is no federal "standard of identity" for honey. Guerrero v. Target Corp., 889 F.Supp.2d 1348, 1361 (S.D.Fla.2012); see also Dan Eggen, Influence Industry: U.S. honey industry asks FDA for national purity standard, Washington Post, July 1, 2010.
Sioux Honey argues that this claim is preempted by section 403A of the NLEA, which provides, in pertinent part, that states may not establish "any requirement for the labeling of food of the type required by section ... 343(i)(1) ... that is not identical to the requirement of such section ..." 21 U.S.C. § 343-1(a)(3). In turn, section 403(i)(1) provides that a food is deemed misbranded unless its label bears "the common or usual name of the food, if any there be ..." 21 U.S.C. § 343(i)(1). In other words, when (as here) there is no federal standard of identity, the label must bear the "common or usual name" of the food contained therein. Under the applicable regulations, the "common or usual name of a food, which may be a coined term, shall accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food or its characterizing properties or ingredients." 21 C.F.R. § 102.5(a). The name "shall be uniform among all identical or similar products and may not be confusingly similar to the name of any other food that is not reasonably encompassed within the same name." Id. The common or usual name may be established by regulation or common usage. 21 C.F.R. § 102.5(d).
In a nearly identical lawsuit filed against Sioux Honey involving California's Honey Standard, the court explained that "Sue Bee Clover Honey meets the typical definition of honey found in dictionaries. Webster's New World Dictionary (3rd Coll. ed. 1998) defines honey as `a thick, sweet, syrupy substance that bees make as food from the nectar of flowers and store in honeycombs.' ... As Sioux Honey demonstrates in its compendium of state honey statutes, ... states throughout this nation have similarly defined honey. None of these definitions require that honey contain non-filtered pollen." Brod v. Sioux Honey Ass'n, Coop., 895 F.Supp.2d 972, 980 (N.D.Cal.2012). In another California honey lawsuit, the court found that the term "honey" is the "common or usual name for a product where the pollen's removal was avoidable" because the National Honey Board
Accordingly, while federal law requires that Sue Bee Clover Honey be labeled "honey," Wisconsin law prohibits using the label "honey" where the pollen was avoidably removed. Brod found that this presents a "classic case of conflict preemption" because it is impossible for Sioux Honey to comply with both state and federal law regarding the labeling of Sue Bee Clover Honey. 2012 WL 3987516 at *9; see also Ross v. Sioux
With respect to express preemption, courts focus on the "plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). As explained above, the NLEA forbids a state from "directly or indirectly" establishing "any requirement for the labeling of food of the type required by" § 343(i)(1) "that is not identical to the requirement of such section ..." § 343-1(a)(3) (emphasis added). Section 403(i)(1) requires only that the label must bear the "common or usual name of the food, if any there be." § 343(i)(1). The "common or usual name" of Sue Bee Clover Honey is "honey," but Wisconsin's Honey Standard forbids Sioux Honey from using that label. Therefore, Wisconsin's labeling requirement is preempted because it is not identical to the NLEA's labeling requirement. Accord, Overton at 15 ("Given that ... the `common or usual name' of a product that has had its pollen avoidably removed is `honey,' and that California Section 29413(e) disallows such a product to be labeled `honey,' it imposes a requirement which is not imposed by federal law, and is therefore not identical to federal law. Consequently, the California Section 29413(e) is preempted by the NLEA and Plaintiff's state law claims based on a violation of California Section 29413(e) are also preempted").
In a case involving Florida's Honey Standard, the court found that the "provisions of [section 403(i)] are triggered only in the absence of any standard of identity, state or federal.... [Section 403(g)] expressly states that it only applies to federal standards of identity, whereas [section 403(i)] contains no similar limitation to state or federal standards of identity." Guerrero, 889 F.Supp.2d at 1362 (emphasis added). In other words, according to Guerrero, if a state has "prescribed a standard of identity for a food product, the provisions of [section 403(i)(1)] are not
In Count III, Regan alleges that by failing to disclose the absence of pollen on the labels for Sue Bee Clover Honey, Sioux Honey was unjustly enriched because they were able to charge a price premium. This claim is essentially the same as Count II, only brought under the guise of state common law. It is preempted for the reasons already stated. Cipollone, 505 U.S. at 521, 112 S.Ct. 2608 ("[t]he phrase `[n]o requirement or prohibition' sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common-law rules"); Bates v. Dow Agrosciences, L.L.C., 544 U.S. 431, 443, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (in the context of express preemption, "the term `requirements' ... reaches beyond positive enactments, such as statutes or regulations, to embrace common-law duties").
Finally, in Count I, plaintiff alleges that Sioux Honey violated Wisconsin Administrative Code § ATCP 90.10(1), which provides that "food sold or distributed for sale in this state shall be labeled in compliance with applicable rules adopted
Even if Regan could pursue a private cause of action for violation of § 102.5(c), he fails to state a claim thereunder. Pollen is not a "characterizing ingredient or component" because, as the Court already explained, honey is honey, even in the absence of pollen. See, Bruce Boynton, CEO, National Honey Board, Honey Without Pollen is Still Honey,
1. Sioux Honey's motion to file a recent decision [ECF No. 20] is
2. Sioux Honey's motion to dismiss [ECF No. 13] is