Metropolitan News-Enterprise


Friday, February 21, 2014


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Panel Revives Class Action Over Food Mislabeling


By MICHAEL J. PEIL, Staff Writer


A state claim for misrepresenting the nutritional information on sunflower seed packaging was not preempted by federal law, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel reinstated Aleta Lilly’s class action complaint against ConAgra Foods. It reasoned that requiring the company to include the sodium content from sunflower seed shells would not impose a greater burden than that already imposed by federal law.

“Some days we are called upon to consider such profound issues as eleventh-hour death penalty appeals, catastrophic threats to the environment, intense and existential questions of civil and human rights,” Judge Barry Silverman explained for the panel. “...Today we consider the coating on sunflower seeds.”

Lilly claims ConAgra violated California law by misrepresenting the sodium content of its sunflower seeds by focusing exclusively on the kernels and not the shells. Silverman said the claim was not preempted.

He explained that federal law required that sodium listings include the “edible portion” of food, and that while shells are inedible, the coating on the shells was consumed and must be accounted for in the sodium information.

Sitting by designation, Senior District Judge C. Roger Vinson of the Northern District of Florida, dissented. He agreed with the district judge that Lilly sought to impose additional labeling requirements by incorporating the shells into the sodium calculation.

That, he argued, went beyond the requirements of the Nutrition Labeling and Education Act under 21 U.S.C. §343.

 Lilly sued Conagra as the representative of a class of consumers, alleging that the company misrepresented the listing of sodium content on its “David” brand of seeds, where it failed to disclose the proper sodium content by not accounting for the salt on the shells in the same way that it did for the kernels.

Lilly alleged that the misrepresentations were in violation of the Consumer Legal Remedies Act under California Civil Code §1750, California’s False Advertising Laws, and the Unfair Competition Law.

The complaint quoted the directions from the package as being “[C]rack the shell with your teeth, eat the seed and spit the shell.” Lilly alleged that, following these instructions, consumers were ingesting some, if not all, of the sodium from the sunflower shells without knowledge of the true quantity of salt.

The Federal Food, Drug, and Cosmetic Act of 1938, later amended in 1990 with the enactment of the Nutrition Labeling and Education Act, governs food labeling and requires most food packages to have a nutritional facts listed on the label. The statute provides that no state may establish requirements for food labeling that are “not identical to” federal requirements.

The FDA regulates the manner in which sodium servings are to be calculated, stating in 21 C.F.R. Section 101.12(a)(6) that the sodium content shall only be based on the ingredients present in the edible portion of food, and not the bone, seed, or shell.

Silverman, explaining that the salt coating was part of the edible portion of food, said:

“[T]he coatings impart flavor and are indisputably intended to be ingested as part of the sunflower seed eating experience. Indeed, these coatings come in flavors such as ‘Ranch’ and ‘Nacho Cheese’ precisely because they are to be consumed before the shell is discarded. The shell is not edible, but the coating is and is intended to be.”

Vinson argued that a plain reading should be of the regulation that disallows shells from being incorporated into the sodium calculation, saying:

“[W]e might prefer a regulation that includes the shell’s absorbed salt and to draw a distinction between an edible ‘coating’ and an inedible shell, we are nonetheless bound to apply this unambiguous regulation objectively as it has been written. In my view, it is not currently written to allow such a nuanced distinction.”

The case is Lilly v. ConAgra Foods, Inc, 12-55921.


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