No. X05 CV 09 6002022S
May 19, 2011
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (#129)
This is a dispute between a defendant food producer and a plaintiff consumer who allegedly suffered an allergic reaction after eating the defendant's product. It centers around the issue of federal preemption, and whether or not our state consumer protection statutes may properly be invoked under these circumstances to possibly mandate a warning label on future sales of this food producer's product.
The plaintiff is Kathy Cardinale (Cardinale), who is suing in her individual capacity, and allegedly on behalf of others similarly situated. The defendant is Quorn Foods, Inc. (Quorn), a Delaware corporation based in Fairfield County with a principal place of business in Westport, Connecticut. Quorn is the United States subsidiary of a U.K. entity named Marlow Foods Holdings, Ltd. The plaintiff's complaint sounds in two counts that are closely related. In count one, the plaintiff alleges a violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110g(a) and 42-110g(d) (CUTPA). In count two, the plaintiff seeks restitution for monies Quorn has received from Cardinale and other putative class members. The plaintiff also seeks a declaratory judgment and permanent injunction, monetary damages for her ascertainable losses resulting from the defendant Quorn's practices, and attorneys fees.
Cardinale seeks class representative status on behalf of all persons in the United States who purchased any Quorn product in the last three years. In the alternative to maintaining a class action, the plaintiff seeks partial class action status as to any common issues of liability. However, no class has been certified at this time.
Cardinale alleges that in April 2008 she purchased the food product known as Quorn Chik'n Patties at a grocery store known as the Harvest Food Coop in Jamaica Plain, Massachusetts. On three separate occasions, as part of three different meals (April 11, April 25 and May 7, 2008), the plaintiff Cardinale consumed the Quorn Chik'n Patties. After each time and within two hours, Cardinale allegedly became ill. The first two times the plaintiff consumed the Quorn product, she became sick and believed she had contracted a stomach virus. On the third and final day she ate her Quorn meal, Cardinale again became sick, with symptoms including vomiting and dizziness. Cardinale sought medical attention, and was told by a doctor that she may have a virus and to return if the symptoms persisted. When Cardinale arrived home that evening, she ate one of the Quorn Chik'n Patties for dinner and subsequently became ill again, reaffirming her belief that she was having an allergic reacting to the Quorn product, and did not have the flu or a stomach virus.
Although the labels for Quorn's products contain warnings about well-known allergens including egg, milk, and wheat, its labels are silent about the Quorn-specific risk of consuming the fungal ingredient "mycoprotein." This is a meat alternative which is the primary ingredient used to make Quorn's frozen meat-free food products, including their Chik'n Patties. Cardinale contends that due to the defendant's failure to warn consumers on their product labels of the "allergenicity" of mycoprotein, she was unaware of the possible health risks associated with the consumption of mycoprotein when she purchased the Chik'n Patties. She further contends that if the defendant Quorn had warned of the risks of developing the kind of problems she experienced, she would not have purchased or consumed the product.
Generally defined as the capacity to elicit an allergic reaction.
The defendant Quorn has filed a motion seeking alternative forms of relief. It seeks to dismiss the complaint for lack of subject matter jurisdiction, or alternatively to strike the complaint. In its motion to dismiss, the defendant contends that the plaintiff's claims are preempted by federal law, but that if the court finds that the doctrine of preemption does not apply, the claims should be dismissed based on the doctrine of primary jurisdiction. In its motion to strike, the defendant argues that the plaintiff fails to state a claim under CUTPA, as the plaintiff does not allege that the prohibited conduct occurred "in this state," nor does the plaintiff allege that her injuries occurred "as a result of" Quorn's purportedly wrongful conduct. Regarding count two, the defendant contends that the plaintiff fails to state a claim for monetary damages that would entitle her to seek any refund from Quorn.
The plaintiff filed a memorandum of law in opposition to the defendant's motion in which she consents to the striking of the CUTPA count, and declares her intention to file a substitute pleading that the plaintiff claims will establish the applicability of CUTPA to Quorn's practices. If this were only a motion to strike pending before it, the court would await such repleading without ruling at this time. However, because Quorn's motion also attacks this court's jurisdiction, "[it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding with the case." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997). For the reasons stated herein, the motion to dismiss is granted, and the motion to strike is thereby rendered moot.
Legal Standard-Motion to Dismiss
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). "The standard governing a trial court's review of a motion to dismiss is well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Davis v. Environmental Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4007475 (January 26, 2007, Tobin, J.) ( 42 Conn. L. Rptr. 691, 691).
"The motion to dismiss admits all facts which are well pleaded, invokes the existing record, and must be decided on that alone . . . Where, however, . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
"The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution." (Internal quotation marks omitted.) Hackett v. J.L.G. Properties, LLC, 285 Conn. 498, 504, 940 A.2d 769 (2008). As the Connecticut Supreme Court has noted, "[d]etermining whether Congress has exercised its power to preempt state law is a question of legislative intent." (Internal quotations omitted.) Cox Cable Advisory Council v. Dept. of Public Utility Control, 259 Conn. 56, 62, 788 A.2d 29, cert. denied, 537 U.S. 819, 123 S.Ct. 95, 154 L.Ed.2d 25 (2002). The supremacy clause states in relevant part: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2.
The Connecticut Supreme Court has outlined the three circumstances in which state law may be preempted by federal law. It is to those circumstances, and the reasonable inferences to be drawn therefrom, that this court looks to for guidance. It consists of both direct and circumstantial evidence. First, when "Congress has made its intent known through explicit statutory language . . ." Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 70, 942 A.2d 345 (2008), citing English v. General Electric Co., 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed. 65 (1990). Second, in the absence of explicit statutory language, state law is pre-empted where it "regulates conduct in a field that Congress intended the [f]ederal [g]overnment to occupy exclusively." (Internal quotation marks omitted.) Id. Third, when "it is impossible for a private party to comply with both state and federal law . . . and where under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (Internal quotation marks omitted.) Id., 71. More recently, in Rodriguez v. Testa, 296 Conn. 1, 993 A.2d 955 (2010), the Connecticut Supreme Court reaffirmed these three criteria. As is apparent from these three possible circumstances, the doctrine of preemption may be found to be applicable pursuant to the express provisions of a federal law, or preemption may reasonably be implied by an existing federal statutory or regulatory scheme.
Under count one, the plaintiff seeks to apply CUTPA §§ 42-110g(a) and 42-110g(d) to the defendant Quorn's sale of its product to ensure that the public receives advance notice of what the plaintiff claims are the unique risks that consumers are taking when they consume the proprietary fungus mycoprotein. The plaintiff alleges that the defendant markets its products in a deceptive manner by failing to publicly disclose the "allergenicity" of products like its Chik'n Patties which contain mycoprotein. Additionally, the plaintiff contends that if the defendant had warned of the risks of developing the kind of allergic reactions she experienced, she would not have purchased or consumed the defendant's product. The plaintiff seeks to recover actual damages pursuant to § 42-110g(a); and also seeks an order for injunctive relief from Quorn's acts or practices prohibited by § 42-110b, pursuant to § 42-110g(d). Further, the plaintiff seeks a declaratory judgment declaring the practices of the defendant Quorn to be illegal.
General Statutes § 42-110g(a) states that: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper."
Statutes § 42-110g(d) provides that: "In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees. In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief."
General Statutes § 42-110b sets forth the legislative intent for the prohibition of unfair trade practices, and states in relevant part: "(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
The defendant Quorn contends that the plaintiff is asking this court to define mycoprotein as a food allergen and further seeks to establish food labeling requirements though this state lawsuit that are far more onerous than those required by federal law. The defendant argues the plaintiff's position is preempted by the federal Food, Drug and Cosmetic Act (FDCA) 21 U.S.C. § 343-1. According to the defendant, the FDCA expressly preempts a state's authority to specify food labeling requirements of the type required by specific subsections of the FDCA if those proposed state requirements are not identical to the requirements set forth in the FDCA. Further, the defendant argues that the labeling sought by the plaintiff here is expressly preempted by two other provisions of federal law. Title 21 U.S.C. § 321(qq) explicitly defines which food allergens must be identified on a product's label, and 21 U.S.C. § 343(w) further establishes the manner and scope of the requisite disclosures by food producers.
21 U.S.C. § 343-1 provides that: "(a) Except as provided in subsection (b) of this section, 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 . . . (2) any requirement for the labeling of food of the type required by section 343(c), 343(e), 343(i)(2), 343(w), or 343(x) of this title that is not identical to the requirement of such section . . ." Subsection (b) states that: "Upon petition of a State or a political subdivision of a State, the Secretary may exempt from subsection (a) of this section, under such conditions as may be prescribed by regulation, any State or local requirement that-(1) would not cause any food to be in violation of any applicable requirement under Federal law, (2) would not unduly burden interstate commerce, and (3) is designed to address a particular need for information which need is not met by the requirements of the sections referred to in subsection (a) of this section."
21 U.S.C. § 321(qq) states: "For the purposes of this chapter . . . (qq) The term "major food allergen" means any of the following: (1) Milk, egg, fish (e.g., bass, flounder, or cod), Crustacean shellfish (e.g., crab, lobster, or shrimp), tree nuts (e.g., almonds, pecans, or walnuts), wheat, peanuts, and soybeans. (2) A food ingredient that contains protein derived from a food specified in paragraph (1), except the following: (A) Any highly refined oil derived from a food specified in paragraph (1) and any ingredient derived from such highly refined oil. (B) A food ingredient that is exempt under paragraph (6) or (7) of section 343(w) of this title."
21 U.S.C. § 343(w) provides that: "A food shall be deemed to be misbranded . . . (w)(1) If it is not a raw agricultural commodity and it is, or it contains an ingredient that bears or contains, a major food allergen, unless either-(A) the word "Contains," followed by the name of the food source from which the major food allergen is derived, is printed immediately after or is adjacent to the list of ingredients (in a type size no smaller than the type size used in the list of ingredients) required under subsections (g) and (i) of this section; or (B) the common or usual name of the major food allergen in the list of ingredients required under subsections (g) and (i) of this section is followed in parentheses by the name of the food source from which the major food allergen is derived, except that the name of the food source is not required when-(i) the common or usual name of the ingredient uses the name of the food source from which the major food allergen is derived; or (ii) the name of the food source from which the major food allergen is derived appears elsewhere in the ingredient list, unless the name of the food source that appears elsewhere in the ingredient list appears as part of the name of a food ingredient that is not a major food allergen under section 321(qq)(2)(A) or (B) of this title."
"Express preemption occurs to the extent that a federal statute expressly directs that state law be ousted to some degree from a certain field." Bell Atlantic Mobile, Inc. v. Department of Public Utility Control, 253 Conn. 453, 471, 754 A.2d 128 (2000). When a federal statute contains an express preemption clause, "the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent. Where the language of the statute plainly indicates that Congress intended preemption, we must give effect to the plain language unless there is good reason to believe Congress intended the language to have some more restrictive meaning. If the text of the statute is ambiguous, either as to Congress's intent to preempt at all or as to the extent of an intended preemption, the meaning of the statute may be gleaned from its context and from the statutory scheme as a whole, or by resort to the normal canons of construction and legislative history." (Internal quotation marks omitted.) In re PepsiCo, Inc., 588 F.Sup.2d 527, 530-531, (S.D.N.Y. 2008).
"When Congress has made its intent known through explicit statutory language, the courts' task is an easy one." Mullin v. Guidant, 114 Conn.App. 279, 288, 970 A.2d 733, cert. denied, 292 Conn. 921, 974 A2d 722 (2009), citing English v. General Electric Co. supra, 496 U.S. 78-79. In Mullin, the court held that the plaintiffs' claims under the Connecticut Product Liability Act were expressly preempted by the FCDA. The case involved a different section of the FCDA known as the Medical Devise Amendments (MDA) of 1976. The court reasoned that since the MDA contained an express preemption clause, "the question we must answer is whether the claims set forth in the plaintiffs' complaint under the state product liability statutes would impose requirements `different from, or in addition to' the requirements set forth in the federal statute." Id., 287.
In the present matter, the plain language of 21 U.S.C. § 343-1(a) is unambiguous. It clearly illustrates Congress' intended preemption of any state law or state court ruling establishing a labeling requirement for an item containing a major food allergen, defined earlier under 21 U.S.C. § 321(qq). Such allergens are already addressed under 21 U.S.C. § 343(w), unless such state provision is identical to its federal counterpart. There is no question that § 343-1, entitled "National Uniform Nutrition Labeling," was enacted by Congress to ensure consistent and uniform labeling requirements for potential allergens throughout the country. Nevertheless, "mycoprotein" is not currently included in the list of major food allergens specified by Congress under 21 U.S.C. § 321(qq). These allergens must be identified in the manner prescribed under § 343(w). Thus, the remedy the plaintiff seeks, placement of a specific warning label on the defendant Quorn's products regarding possible allergic reactions to the fungal ingredient mycoprotein, apparently does not come within the purview of the express preemption clause of § 343-1(a).
As this court finds that the express preemption provision § 343-1(a) may not apply to the present matter, the court has not included an analysis of whether the remedy the plaintiff seeks is exempted from subsection (a) by the provisions set forth in subsection (b) of that statute.
That being said, this is not an issue of first impression, in that the topic of mycoprotein and its allergenicity (or lack thereof) is also currently pending before the Food and Drug Administration (FDA). Surely such a federal agency with its staff of food scientists, nutrition experts and vast regulatory authority over our nation's food supply is in a far better position and possessed of more adequate resources to properly assess the pros and cons of additional or specific labeling for the food product at issue here. If it is not, an argument could be made that the FDA should be disbanded and the money to run its operations should be delegated to each of the fifty states to better enforce their own consumer protection laws. If there is one area that cries out for uniformity and the application of neutral scientific principles, it is the labeling of potential food allergens for the fifty states.
A finding that the warning label sought by the plaintiff may not be not expressly preempted by federal law is not the end of the court's inquiry, however. It has been held by the Connecticut Supreme Court that the presence of an express preemption provision in a federal statute does not prevent a finding of an implied preemption. One fact pattern may implicate both types of preemptions. In Dowling v. Slotnik, supra, 244 Conn. 781, the Connecticut Supreme Court held that "[t]he inclusion in a federal statute of an express provision regarding preemption does not necessarily foreclose the possibility that aspects of a state law not expressly within the federal preemption provision may be preemption by implication." Id., 794 n. 13. Implied preemption occurs "either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively . . . or when state law is in actual conflict with federal law. [The United States Supreme Court] has found implied conflict pre-emption where it is impossible for a private party to comply with both state and federal requirements . . . or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (Internal quotation marks omitted.) Id., 794; see also Hackett v. J.L.G. Properties, LLC, supra, 285 Conn. 504 (noting that "absent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the [s]tates to supplement federal law . . . or where the state law at issue conflicts with federal law, either because it is impossible to comply with both . . . or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives . . ."
"The intent to occupy a particular field may be inferred from a scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it, or where an act of Congress touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Connecticut Siting Council, supra, 286 Conn. 70. In the present matter, the defendant contends that the plaintiff's lawsuit conflicts with the procedural regulations established by the FDA which address issues relating to mycoprotein. The defendant argues that it is the FDA's responsibility to rule on whether mycoprotein is "safe" for human consumption. With respect to the procedural regulations, the defendant argues that Congress and the FDA have established two different paths in order to have a food deemed "safe." One method is by filing a food additive petition, and the other is by filing what is known as a GRASnotice.
Quotation marks around the word "safe" are utilized by the defendant Quorn in its brief.
GRAS is an acronym for the phrase `Generally Recognized As Safe.' "A food additive is presumed unsafe unless the Secretary of Health and Human Services promulgates regulations prescribing the conditions under which it may be safely used or providing for its investigational use by qualified experts . . . To prove that a substance is generally recognized as safe, the proponent must submit evidence establishing that scientifically trained experts, qualified to evaluate the substance, believe it is generally recognized as safe, and show that there is scientific data establishing the safety of the substance for use as a food supplement." 35A Am.Jur.2d Food §§ 27, 28 (2010).Under 21 U.S.C. §§ 321(s), (u) and § 348, any substance that is intentionally added to food is a food additive that is subject to premarket review and approval by FDA, unless the substance is generally recognized, among qualified experts, as having been adequately shown to be safe. The use of a food substance may be GRAS through scientific procedures and experience as set forth by the FDA's implementing regulations 21 CFR § 170.3 and 21 CFR § 170.30. See Construction and application of food additives provisions of Federal Food, Drug, and Cosmetic Act, 21 A.L.R. Fed. 314 (1974).
Through affidavits submitted in support of its motion to dismiss, the defendant attests that it has embarked on both procedures, and Quorn is currently selling products having complied with all GRAS notice requirements while Quorn's food additive petition remains under review by the FDA. With respect to the substantive determinations, the defendant Quorn argues that the plaintiff seeks a ruling from this court which the FDA itself has rejected for years. Nevertheless, neither the plaintiff Cardinale nor the defendant Quorn has provided this court with any sort of timetable as to when the FDA might be in a position to rule. In effect, the plaintiff is asking this Court to revoke the GRAS status of mycoprotein, or at least classify mycoprotein as a major food allergen. It is clear that a warning label is at the crux of this lawsuit, and the plaintiff wants to use the jurisdiction of this court to require the defendant Quorn to include warning labels in Connecticut on its food products, labels that are inconsistent with a finding that mycoprotein is generally recognized as safe to eat. As a procedural tool to aid the plaintiff or another party in prosecuting a claim before the FDA, it would be a home run in plaintiff's terms, but such a course of action is of merit only to this plaintiff. Otherwise, there are limited resources in our state courts, and even less suitability for our Superior Court to involve itself in the food allergen label reviewing business. This court is not the FDA, and whether mycoprotein constitutes a food allergen that requires special labeling is clearly both an issue within the specialized knowledge of the FDA, and one that is already pending before the FDA. Any ruling by this court on that issue could indeed be inconsistent with, if not contrary to, any policy decisions reached by the FDA.
The plaintiff counters that consumer protection is a field which the states have traditionally occupied, citing Wyeth v. Levine, 555 U.S. 55, 129 S.Ct. 1187, 173 L.Ed. 51 (2009), which noted that "state law offers an additional, and important, layer of consumer protection that complements FDA regulation." Id., 129 S.Ct. 1202. In Wyeth, the United States Supreme Court held that an FDA regulation did not preempt the plaintiff's claim under state law alleging a failure-to-warn due to defective labeling against the manufacturer of an antihistamine. The plaintiff alleged that the defendant's product label was defective "because it failed to instruct clinicians to use the IV-drip method of intravenous administration instead of the higher risk IV-push method." Id., 1192. The court reasoned that pursuant to FDA regulation, "a manufacturer [may] make certain changes to its label before receiving the agency's approval. Among other things, this `changes being effected' (CBE) regulation provides that if a manufacturer is changing a label to `add or strengthen a contraindication, warning, precaution, or adverse reaction' or to `add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug product,' it may make the labeling change upon filing its supplemental application with the FDA; it need not wait for FDA approval." Id., 1196. Therefore, the plaintiff's state law claim, requiring a change in labeling, would not prevent the defendant's compliance with federal law, and thus was not preempted. Here the plaintiff argues that because of the holding in Wyeth, no conflict exists between the enhanced labeling requirement the plaintiff seeks here and the FDCA's mandate.
The FDCA, 21 U.S.C. 301 et seq., was enacted by Congress to "extend the range of control over impure and adulterated food and drugs moving in interstate commerce." United States v. 1851 Cartons, 146 F.2d 760, 761 (10th Cir. 1945); see also United States v. Dotterweich, 320 U.S. 277, 280, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (stating that when passing the FDCA "Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience"). Further, "[t]he very purpose of the [FDCA] is to keep interstate commerce free from deleterious, adulterated and misbranded articles of specified types to the end that the public health and safety might be advanced." United States v. Wilhelm Reich Foundation, 17 F.R.D. 96, 101 (D.Me. 1954), aff'd sub nom, Baker v. United States, 221 F.2d 957 (1st Cir. 1955), cert. denied, 350 U.S. 842, 76 S.Ct. 82, 100 L.Ed. 750 (1955), citing United States v. Walsh, 331 U.S. 432, 67 S.Ct. 1283, 91 L.Ed. 1585 (1947).
There is an ALR annotation on this particular subject which reviews and discusses the pre-emptive effect various federal laws can have on food labeling requirements under state law. "The courts have focused on the scope and impact of the particular state statute, emphasizing the question whether compliance with both statutes was possible . . . [I]n those cases involving the pre-emptive effect of the federal Food, Drug, and Cosmetic Act ( 21 U.S.C.A. §§ 301- 392), the results have varied, depending on the particular state statute, with some courts holding that the state statute was pre-empted and other courts reaching a contrary result." Federal pre-emption of state food labeling legislation or regulation, 79 A.L.R. Fed. 181, 186 § 2 (1986).
The United States Supreme Court, in a case involving Florida citrus growers, Florida Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 120, 10 L.Ed. 248 (1963), discussed when a State may constitutionally reject commodities which a federal authority has previously certified to be marketable. The court held that it depends upon "whether the state regulation stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress . . ." (Internal quotation marks omitted.) Id., 141. The court went on to note that the "test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives." Id., 142. In the present action here in state court, the court finds that litigating the requirement for the defendant to place a warning label on its products regarding possible allergic reactions to mycoprotein might prove to be an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The court is aware of the tradition of state court consumer protection litigation for the protection of its citizens. This court is also aware, as it must be, of which resources of government — state or federal, judicial, legislative or regulatory, might best address — in fact, actually are addressing — this food sales and labeling problem, if a problem there proves to be.
Therefore, both common sense and the law dictate that any requirement by a state which would infringe on Congress' extended power over food labeling requirements on products placed into interstate commerce must be closely scrutinized. Jurisdiction is implicated here, and this claim is found to be impliedly preempted by the FDCA. By specifically enacting § 321-1, the National Uniform Nutrition Labeling Act, Congress expressed a federal intent to occupy the field of labeling of products with potential food allergens. Congress has explicitly specified which allergens, the `major food allergens,' it concludes consumers must be notified of on product labels. Despite the plaintiff's belief in the allergenicity of mycoprotein, the FDA is still reviewing that claim, and Congress has not yet acted on any recommendation from the FDA to add it to the list of allergens it believes consumers should be warned about in the interests of public health.
The plaintiff points out that the FDA has not made its own determination regarding the GRAS status of Quorn's use of mycoprotein, nor made an explicit finding that mycoprotein is "safe." While both statements may be true, such arguments in support of the plaintiff's position here are best addressed to the FDA. With the court lacking the FDA's resources and scientific expertise, the plaintiff may not resort to CUTPA as a vehicle to impose a labeling requirement upon the defendant that is not required by the allergenicity standards of the FDCA, or goes above and beyond its provisions, as it finds it would be an obstacle to the accomplishment and execution of the purposes and objectives of Congress in the field of labeling food products containing potential allergens. This is but one state out of fifty and the court finds that the remedies the plaintiff seeks in this lawsuit are impliedly preempted by the federal regulatory structure of the FDCA.
Regardless of the potential merits of the plaintiff's position on the need for additional labeling for Quorn products containing mycoprotein, this state court does not reach them. That is because it finds that the plaintiff's claim for additional labeling requirements to warn of possible allergic reactions to the defendant Quorn's products is impliedly if not expressly preempted by federal law and regulation. The United States Congress has clearly expressed its intent in the field of labeling of products containing potential allergens. The claims set forth in the plaintiffs' complaint would impose requirements different from, or in addition to the labeling requirements set forth either in the federal statute, or promulgated by the FDA, the federal agency tasked with proper regulation and oversight of our nation's food supply. Therefore, this state court simply does not have the power to impose this type of labeling requirement upon the defendant Quorn's food product that is not otherwise required by the FDCA, or to mandate a specific label whose wording goes above and beyond the provisions of the FDCA.
As stated earlier, the parties report that the defendant's food additive petition remains "under review" with the FDA. This is simply not a dismissal that leaves any party without a remedy in this case. The plaintiff may well be frustrated by the perceived glacial pace of movement by the federal bureaucracy on the issue of mycoprotein and its potential allergenicity, but for this court to rule otherwise in this case when this very issue is pending before the FDA would act as an obstacle to the accomplishment of Congress' objectives and purpose. It would potentially lead to the Balkanization of labeling requirements for food allergens, as each of the fifty states sought to impose their own view of what might be appropriate for food products sold within its own borders. There is no real benefit to consumers in such an ad hoc approach.
In its motion to dismiss, the defendant advances alternate grounds for granting the motion. It argues that if the court finds that the doctrine of preemption does not apply, the claims should be dismissed based on the doctrine of primary jurisdiction. Specifically, the defendant contends that the issue of whether mycoprotein is "safe" or constitutes a potential food allergen requiring specific labeling is an issue within the specialized knowledge of the FDA. Therefore, the defendant Quorn argues that a ruling by the Court on that issue could be inconsistent with the policy decisions reached by the FDA. As this court has found that the case is pre-empted, the doctrine of primary jurisdiction is not further addressed.
IT IS SO ORDERED.