Indeed, as Plaintiffs point out, the FPLA itself recognizes this point, stating that “[p]ackages and their labels should enable consumers to obtain accurate information as to the quantity of the contents and should facilitate value comparisons.” 15 U.S.C. § 1451; see Opp. at 9.

Therefore, it is hereby declared to be the policy of the Congress to assist consumers and manufacturers in reaching these goals in the marketing of consumer goods. 15 U.S.C. § 1451. It is plain that in making a value comparison between products, a reasonable consumer would consider, as Plaintiffs have, the quantity of product actually available for use.

Notably, the Complaints are conspicuously lacking any specific allegations that are required for Section 1 price-fixing claims regarding the key element of such claims: an agreement to fix prices in a market that causes harm to U.S. customers. Rather than alleging specifically who, what, when, where and how Defendants agreed to fix U.S. prices, the Complaints merely make references to generic “Defendants” and assert that the “Defendants” “agreed to a specific protocol” to be followed in 10 Federal law, the USDA, and the FDA, as well as language differences, require differences in ingredients, packaging, and labeling of Korean Noodles destined for sale in the U.S. For example, products sold in the United States must adhere to the requirements of, inter alia, the Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., the Fair Packaging and Labeling Act, 15 U.S.C. § 1451 et seq.; 16 C.F.R. Parts 500-503, and regulations of the U.S. Department of Health and Human Services, Food and Drug Administration (“FDA”) specifying nutritional labeling and product naming, 21 C.F.R. Parts 101-102, including with respect to labeling and U.S. measurement requirements (see 21 C.F.R. §§ 101.9, 101.

More than thirty years ago, the Supreme Court examined the language of the FDCA and held that it does not contain any language expressly preempting state law claims involving prescription drugs. Specifically, in Jones v. Rath Packing Co., the Supreme Court contrasted the language of the FDCA with the language of another federal statute, the Fair Packaging and Labeling Act, 15 U.S.C. § 1451, et seq. (“FPLA”), as follows: “The FDCA contains no preemptive language. The FPLA, on the other hand, declares that ‘it is the express intent of Congress to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for the labeling of the net quantity of contents of the package of any consumer commodity covered by this chapter….

More than thirty years ago, the Supreme Court examined the language of the FDCA and held that it does not contain any language expressly preempting state law claims involving prescription drugs. Specifically, in Jones v. Rath Packing Co., the Supreme Court contrasted the language of the FDCA with the language of another federal statute, the Fair Packaging and Labeling Act, 15 U.S.C. § 1451, et seq. (“FPLA”), as follows: “The FDCA contains no preemptive language. The FPLA, on the other hand, declares that ‘it is the express intent of Congress to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for the labeling of the net quantity of contents of the package of any consumer commodity covered by this chapter….

. Section 379r reads as follows: (a) In general Except as provided in subsection (b), (c)(1), (d), (e), or (f) of this section, no State or political subdivision of a State may establish or continue in effect any requirement - (1) that relates to the regulation of a drug that is not subject to the Case 2:15-cv-04145-RGK-JC Document 30 Filed 08/31/15 Page 10 of 25 Page ID #:265 Complaint - 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requirements of section 353(b)(1) or 353(f)(1)(A) of this title; and (2) that is different from or in addition to, or that is otherwise not identical with, a requirement under this chapter, the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471 et seq.), or the Fair Packaging and Labeling Act (15 U.S.C. 1451 et seq.). 21 U.S.C. § 379r.

See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 520-21 (1992) (state laws claims that would require additional warnings on cigarette labels other than those mandated by Congress are expressly preempted); Parker v. Stryker Corp., 584 F. Supp. 2d 1298, 1303 (D. Colo. 2008) (state law claim preempted because it “would contradict the FDA’s determination that the representations made on the label were adequate and appropriate and, thus, impose requirements different from or in addition to the federal requirements”).3 Plaintiffs further argue that Congress included a policy declaration in the FPLA that “[p]ackages and their labels should enable consumers to obtain accurate information as to the quantity of the contents and should facilitate value comparisons.” (Pl. Br. p. 10, quoting 15 U.S.C. § 1451.)

Indeed, Defendant has not – and cannot – point to a single case where state law claims regarding false representations about homeopathic product efficacy have been pre-empted by federal law. Section 379r reads as follows: (a) In general Except as provided in subsection (b), (c)(1), (d), (e), or (f) of this section, no State or political subdivision of a State may establish or continue in effect any requirement - (1) that relates to the regulation of a drug that is not subject to the requirements of section 353(b)(1) or 353(f)(1)(A) of this title; and (2) that is different from or in addition to, or that is otherwise not identical with, a requirement under this chapter, the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471 et seq.), or the Fair Packaging and Labeling Act (15 U.S.C. 1451 et seq.). 21 U.S.C. § 379r.