Metropolitan News-Enterprise


Wednesday, October 27, 2021


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Suit Revived Challenging Banquet-Brand’s Website Claims

Ninth Circuit Says Action Under California Law May Proceed Based on Alleged Falsity of Representation on Internet Site That Chicken Products Are Made ‘Without Preservatives, Artificial Flavors, or Artificial Colors’


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reinstated a putative class action against ConAgra Brands, Inc. to the extent the multi-billion dollar company allegedly lies on a website that its Banquet-brands frozen chicken products lack additives when they don’t.

In describing each of the products—including varieties of chicken breast strips, tenders, nuggets and—the Banquet website represents: “made with 100% natural white-meat chicken, and without preservatives, artificial flavors, or artificial colors.” (In connection with non-breast patties and popcorn chicken, the words “white-meat” are omitted.)

The complaint alleges that the products are misrepresented because they do contain synthetic ingredients: sodium acid pyrophosphate, sodium tripolyphosphate. and modified corn starch. It seeks damages and injunctive relief under California’s Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law.”


Above is the website claim for one of the Banquet-brand chicken products.


Preemption Found

District Court Judge David O. Carter of the Central District of California dismissed, with prejudice, the action brought by consumer Robert Cohen. He found that the United States Department of Agriculture’s Food Safety and Inspection Service (“FSIS”) had approved the labels on the Banquet products, thus a challenge to the labels and the website claims was preempted under the federal Poultry Products Inspection Act (“PPIA”).

Circuit Judge Mark J. Bennett wrote yesterday’s opinion which affirms in part and reverses in part.

Under the decision, it’s up to ConAgra, on remand, to show that the FSIS did, in fact, approve the labels; if it did not, the content of the labels, as well as the website claim that the chicken is “100% natural” may be assailed under state law; whether it did or did not approve the labels, Cohen may challenge the website’s claim that the products contain no “preservatives, artificial flavors, or artificial colors.”

Mere Assumption

Carter assumed that the FSIS had approved the labels but, Bennett said, there was no evidence of that. He wrote:

“Here, we find that the mere existence of the label is insufficient to establish that it was reviewed and approved by FSIS. Preemption is an affirmative defense, so the defendant bears the burden of pleading and supporting its preemption argument….Thus, when the parties dispute whether FSIS review occurred at all. the defendant must produce evidence that the label was reviewed and approved by FSIS.”

The circuit judge stressed that if ConAgra does show FSIS approval, Cohen may not contest its decision, explaining:

“Cohen’s policy arguments against preemption are not only irrelevant, but also unpersuasive. The absence of a remedy for consumers in the PPIA is intentional….Congress granted a federal agency the authority to uniformly determine the standard for poultry mislabeling and to apply that standard to labels before they go to market….Allowing private consumers to second-guess the agency’s decisions through state law claims against producers would both circumvent that pre-approval process and conflict with the PPIA’s goal of national uniformity.”

Website Claims

Bennett said that if there had been FSIS approval, Cohen my not contest the website’s description of the products as containing “100% natural, white-meat chicken” because that is “essentially identical to the representation on the product label—“Made with 100% Natural White Meat Chicken.”

He continued:

“But the second half of that representation—“They’re [(the chicken products)] made...without preservatives, artificial flavors, or artificial colors”—is materially different from the representations on the label. As ConAgra acknowledges, the label ‘nowhere claims that the products, as a whole...contain ‘no preservatives.’”

The packages do say:




However, ConAgra contends that “no preservatives” refers to the chicken, not the product as a whole.

Bennett said the “website representation does claim that the chicken products as a whole are made without preservatives, artificial flavors, or artificial colors,” explaining:

“The conjunction ‘and’ shows that the phrase ‘without preservatives, artificial flavors, or artificial colors’ modifies the whole product, not just the ‘natural, white-meat chicken.’ Thus, the website representation materially differs from the product label. Accordingly, Cohen’s state law claims challenging ConAgra’s website representation that the chicken products as a whole contain no preservatives, artificial flavors, or artificial colors, are not preempted (whether or not the product labels were reviewed and approved by FSIS).”

The case is Cohen v. ConAgra, 20-55969.

Health Dangers

Not reflected by the opinion are the claims made in the complaint as to dangers of the additives. The pleading says (with paragraph numbers omitted):

“Both Sodium Tripolyphospliate and Sodium Acid Pyrophosphate are preservatives that are phosphorus based. Consuming too many phosphates— especially as an additive in processed foods—can contribute to an increased risk of heart disease and exacerbate kidney disease symptoms.

“Phosphorous can contribute to osteoporosis. If a person has too much phosphorus and not enough calcium in their diet, it can be detrimental to skeletal system health because excess phosphorus makes bones brittle by encouraging the body to break down bone instead of building bone up. The more phosphorus that a person eats, the more calcium a person needs to eat in order to maintain a healthy balance, otherwise there could be health complications for people with low bone density. The University of Maryland Medical Center has stated that Western diets already putting many consumers at risk of encountering these problems if they are unaware of the amount of phosphorus they are ingesting.

“Sodium Acid Pyrophosphate, when consumed in large amount for an extended period of time, can harm the immune system.”


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