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Del Real, LLC v. Harris

United States District Court, E.D. California

August 19, 2013

DEL REAL, LLC, a California limited liability company, Plaintiff,
v.
KAMALA D. HARRIS, in her official capacity as Attorney General of California, Defendant

Page 1048

For Del Real, LLC, a California limited liability company, Plaintiff: Darren P. Trone, LEAD ATTORNEY, Law Offices of Darren Trone, Riverside, CA; Kent Jeffrey Schmidt, LEAD ATTORNEY, Dorsey & Whitney LLP, Costa Mesa, CA; Steven J. Wells, PHV, Timothy J. Droske, PHV, LEAD ATTORNEYS, PRO HAC VICE, Dorsey and Whitney LLP (Minneapolis), Minneapolis, MN.

For Kamala D. Harris, in her official capacity as Attorney General of California, Defendant: Alexandra Robert Gordon, LEAD ATTORNEY, CA. Dept. of Justice, Office of the Attorney General, San Francisco, CA; Susan K. Smith, LEAD ATTORNEY, Office of the Attorney General of California, Los Angeles, CA.

For Edmund G. Brown, in his official capacity as Governor of California, State of California, Defendants: Alexandra Robert Gordon, LEAD ATTORNEY, CA. Dept. of Justice, Office of the Attorney General, San Francisco, CA.

OPINION

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MEMORANDUM DECISION AND ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 26 & 37)

Lawrence J. O'Neill, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Plaintiff Del Real, LLC (" Del Real" ) prepares, packages, and sells fully cooked meat and poultry dishes that are distributed and sold throughout California. Several California counties have threatened enforcement actions against Del Real, alleging that Del Real's products are packaged in violation of the nonfunctional slack fill provisions of the California Fair Packaging and Labeling Act (" CFPLA" ), Cal. Bus. & Prof. Code § § 12606, 12606.2. Del Real challenges CFPLA's slack fill regulations, arguing they are preempted as applied to meat and poultry products regulated by the Federal Meat Inspection Act (" FMIA" ) and Poultry Products Inspection Act (" PPIA" ).

Before the Court for decision are cross motions for summary judgment. Plaintiff's opening motion, filed March 20, 2013, seeks summary judgment as well as permanent injunctive and declaratory relief on Del Real's preemption claim. Doc. 26. In addition, Plaintiff seeks judgment in its favor on Defendant's justiciability and affirmative defenses. Id. Defendant Kamala Harris, the Attorney General of California, cross-moves for summary judgment, arguing that the CFPLA is not preempted because it is consistent with FMIA and PPIA; to the extent the CFPLA requires additional or different requirements, the CFPLA is inoperative, not preempted; and even if the CFPLA is partially unconstitutional by virtue of preemption, the

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preempted provisions should be severed from the remainder of the statute. Doc. 37. Plaintiff filed a combined opposition and reply, Doc. 38, as did Defendant, Doc. 39. The motions were fully briefed as of July 12, 2013. Having reviewed these filings, and in light of the entire record, the Court does not believe oral argument is necessary to aid resolution of these motions, and hereby rules on the papers pursuant to Local Rule 230(g).

II. FACTUAL BACKGROUND

Del Real's fully cooked meat and poultry Mexican dishes are packaged in heat and serve containers that are distributed and sold throughout California. Plaintiff's Statement of Undisputed Fact (PSUF) #1.[1] Certain meat and poultry dishes packaged in sixteen-ounce containers are sold in grocery stores. PSUF #2. Other meat and poultry dishes are sold in thirty-two and forty ounce containers at club stores. PSUF ## 3-4.

Del Real's packaging process occurs at a California facility subject to inspection by the United States Department of Agriculture under the FMIA and PPIA. PSUF #6. A USDA inspector is on site at Del Real's facility and present for all shifts. PSUF # 7. To Del Real's knowledge, the USDA has never expressed concern that Del Real's packaging is misleading in any way, nor has Del Real, to its knowledge, ever been subject to any investigation, allegation or charge by the federal government with respect to the fill of its products. PSUF #8.

In or around August 2010, the Sonoma County Division of Weights and Measures claimed to have measured the amount of slack fill in several of Del Real's packaged products, and reported that the packaging amounts to a " clear violation" of the CFPLA. PSUF ## 9-10. Likewise, the California Department of Food and Agriculture conducted its own investigation in October 2010 into the slack fill in two of Del Real's products, concluding that the packaging violated the CFPLA. PSUF #11. Similar investigations in Napa and Alameda Counties resulted in similar conclusions. PSUF #12. In November 2011, the Consumer Protection Divisions of the Alameda, Napa, and Sonoma County District Attorney's Offices sent a letter to Del Real, alleging that Del Real's packaging was in violation of the slack fill provisions of the CFPLA. PSUF # 14. A June 2012 letter from the Sonoma County District Attorney's Office expanded the allegations to other Del Real packaged food products. PSUF #15.[2]

III. STANDARD OF DECISION

Summary judgment is proper if the movant shows " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. The moving party bears the initial burden of " informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation

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marks omitted). A fact is material if it could affect the outcome of the suit under the governing substantive law; " irrelevant" or " unnecessary" factual disputes will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If the moving party would bear the burden of proof on an issue at trial, that party must " affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In contrast, if the non-moving party bears the burden of proof on an issue, the moving party can prevail by " merely pointing out that there is an absence of evidence to support the non-moving party's case." Id.

Where a case, such as this one, does not turn on its facts, but rather presents a pure question of law, the matter is well suited for summary disposition. Citizens for Honesty & Integrity in Reg'l Planning v. Cnty. of San Diego, 258 F.Supp.2d 1132, 1135 (S.D. Cal. 2003) appeal dismissed and remanded, 399 F.3d 1067 (9th Cir. 2005); see also Comm. of Dental Amalgam Mfrs. & Distributors v. Stratton, 92 F.3d 807, 810 (9th Cir. 1996).

IV. DISCUSSION

A. Justiciability Defenses.

Defendant raised three justiciability defenses in its Answer: (1) there is no Article III case or controversy, (2) that Plaintiff lacks standing, and (3) that the claims are not ripe. Plaintiff challenged these defenses in its motion for summary judgment. Doc. 26 at 15. Defendant did not respond. Because of its sua sponte duty to ensure Article III jurisdiction, the Court has independently examined these issues and wholly adopts the reasoning provided at pages 15 to 16 of Plaintiff's motion:

Whether a " case or controversy within the meaning of Art. III of the Constitution" has been alleged when a plaintiff challenges a statute depends on whether the plaintiff can " demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 297-98, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (internal quotations omitted). The Supreme Court has made clear, however, that " [o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough." Id. (internal quotations omitted). Instead, " [i]t is sufficient for standing purposes that the plaintiff intends to engage in a 'course of conduct arguably affected with a constitutional interest' and that there is a credible threat that the challenged provision will be invoked against the plaintiff." LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir. 2000) (quoting Babbitt, 442 U.S. at 298); see Jacobus v. Alaska, 338 F.3d 1095, 1104- 05 (9th Cir. 2003) (observing that the same " genuine threat of imminent prosecution" also satisfies the ripeness requirement). Here, both of these factors are clearly satisfied. Since 2010, California investigations have claimed that Del Real's meat and poultry products violate the slack fill requirements found in the CFPLA, and Del Real has not, to date, made any changes to its packaging. See Bowden Decl. ¶ ¶ 11-16; see also Bowden Decl. ¶ 15 & Ex. D at DelR0000083 (claiming Del Real " remains out-of-compliance with BPC § 12606.2" ).
Moreover, there is clearly a credible threat that the challenged provision will be invoked against Del Real, given that

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county district attorneys have specifically stated their intent to " fil[e] a law enforcement action." Bowden Decl. ¶ 13 & Ex. B at DelR0000058. Given this live threat of enforcement, this suit is clearly justiciable before the Court.

Doc. 26 at 15-16.

Defendant also suggested in its Answer that this court should abstain from deciding this case under Railroad Comm'n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Wilton v. Seven Falls Co., 515 U.S. 277, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995), and/or Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942). These doctrines do not apply to a request for declaratory relief in case of preemption. " Burford and Pullman abstentions are generally inappropriate when the case concerns preemption." Hotel Employees and Restaurant Employees Intern. Union v. Nevada Gaming Comm'n, 984 F.2d 1507, 1512 (9th Cir. 1993). District courts have broad discretion to stay or dismiss actions seeking declaratory judgment, as recognized in Brillhart and Wilton. Brillhart, 316 U.S. at 495; Wilton, 515 U.S. at 287. The Brillhart-Wilton doctrine rests on concerns about judicial economy and cooperative federalism. Brillhart, 316 U.S. at 495. In light of this purpose, district courts consider three primary factors when evaluating whether to entertain a declaratory judgment action: (1) avoiding needless determination of state law issues; (2) discouraging forum shopping; and (3) avoiding duplicative litigation. R.R. St. & Co. Inc. v. Transp. Ins. Co., 656 F.3d 966, 975 (9th Cir. 2011). None of these concerns are present here. A claim of federal preemption requires analysis and determination of the scope of state law; and the facts do not suggest forum shopping or the risk of duplicative litigation.

B. Relevant Federal Statutes and Regulations.

The FMIA and PPIA comprehensively regulate meat and poultry products, respectively, in order to protect " the health and welfare of consumers ... by assuring that meat and meat food products distributed to them are wholesome, not adulterated, and properly marked, labeled, and packaged." 21 U.S.C. § 602 (FMIA, applicable to cattle, sheep, swine, or goats); 21 U.S.C. § 451 (PPIA, applicable to poultry). Both the FMIA and PPIA contain requirements aimed at eliminating " misbranded" meat and poultry, including situations where the products' " container is so made, formed, or filled as to be misleading." 21 U.S.C. § § 601(n)(4), 453(h)(4). Both Acts prohibit the sale of any meat or poultry product in any container of a " misleading form or size...." 21 U.S.C. § § 607(d); 457(c). In addition, both Acts authorize the Secretary of Agriculture to prescribe " standards of fill of container for such articles not inconsistent with any such standards established under the Food, Drug, and Cosmetic Act [21 U.S.C. § 301 et seq. ]." 21 U.S.C. § § 607(c)(2), 457(b)(2). While this language clearly authorizes the Secretary to promulgate regulations pertaining to slack fill in meat and poultry product packaging, the Secretary has not directly addressed slack fill by regulation. Instead, the relevant FMIA regulations prohibit meat from being sold in packages " filled [so] as to be misleading." 9 C.F.R. § 317.8(a); accord 9 C.F.R. § 301.2 (defining the term " misbranded" to include any " meat food product ... [i]f its container is so made, formed, or filled as to be misleading" ). Likewise, the PPIA's regulations prohibit the sale of any poultry product in " any container that is so made, formed, or filled as to be misleading." 9 C.F.R. § 381.129(a);

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accord 9 C.F.R. § 381.1 (adopting definition of " misbranded" used in the FMIA regulations). The FMIA and PPIA regulations do not otherwise address any subjects that could arguably be equivalent to the concept of slack fill.

Other federal statutes do regulate slack fill. The Federal Food, Drug, and Cosmetic Act (" FDCA" ), 21 U.S.C. § 321 et seq. , and Federal Fair Packaging and Label Act (" FFPLA" ), 15 U.S.C. § 1451 et seq. , or regulations promulgated thereunder, explicitly prohibit packages from containing " nonfunctional slack fill," and provide specific examples of the limited circumstances in which slack fill is deemed functional, and thus permissible. For example, the FDCA's implementing regulations provide:

A container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill. Slack-fill is the difference between the actual capacity of a container and the volume of product contained therein. Nonfunctional slack-fill is the empty space in a package that is filled to less than its capacity for reasons other than:
(1) Protection of the contents of the package;
(2) The requirements of the machines used for enclosing the contents in such package;
(3) Unavoidable product settling during shipping and handling;
(4) The need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of a food), where such function is inherent to the nature of the food and is clearly communicated to consumers;
(5) The fact that the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has value which is both significant in proportion to the value of the product and independent of its function to hold the food, e.g., a gift product consisting of a food or foods combined with a container that is intended for further use after the food is consumed; or durable commemorative or promotional packages; or
(6) Inability to increase level of fill or to further reduce the size of the package (e.g., where some minimum package size is necessary to accommodate required food labeling (excluding any vignettes or other nonmandatory designs or label information), discourage pilfering, facilitate handling, or accommodate tamper-resistant devices).

21 C.F.R. § 100.100(a); see also 15 U.S.C. § 1454(c) (FFPLA) (permitting issuance of regulations to " prevent the nonfunctional-slack-fill of packages containing consumer commodities" and defining a package as " nonfunctionally slack-filled if it is filled to substantially less than its capacity for reasons other than (A) protection of the contents of such package or (B) the requirements of machines used for enclosing the contents in such package." ). However, meat and poultry products regulated by the FMIA and PPIA are specifically excluded from application of the FDCA's and FFPLA's requirements. 21 U.S.C. § 392(a) (exempting meat products from the FDCA); 21 U.S.C. § 467f(a) (exempting poultry products from the FDCA); 15 U.S.C. § 1459(a)(1) (exempting meat and poultry products from the FFPLA).

C. Relevant State Statutes and Regulations.

The CFPLA, like the FDCA and FFPLA, specifically prohibits nonfunctional slack fill. The CFPLA generally prohibits containers " made, formed, or filled

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[so] as to be misleading" and defining a container " that does not allow the consumer to fully view its contents" to be per se " misleading if it contains nonfunctional slack fill." Cal. Bus. & Prof. Code § 12606(b). Slack fill is defined as " the difference between the actual capacity of a container and the volume of product contained therein." Id. " Nonfunctional slack fill" is " the empty space in a package that is filled to less than its capacity" for reasons other than those specifically permitted by the CFPLA. Id. In addition, a separate CFPLA provision prohibits nonfunctional slack fill in " food containers" subject to the FDCA's slack nonfunctional slack fill prohibitions. Cal. Bus. & Prof. Code ยง ...


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