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Turek v. General Mills

September 1, 2010

CAROLYN TUREK, PLAINTIFF,
v.
GENERAL MILLS, INC., AND KELLOGG COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Robert W. Gettleman United States District Judge

Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff, Carolyn Turek, has filed an amended complaint against defendants, General Mills, Inc. ("Mills") and the Kellogg Company ("Kellogg"), alleging that defendants marketed and sold food products in violation of the Illinois Consumer Fraud and Deceptive Practices Act (the "CFA"), 815 ILCS 505/1 et seq. Defendants have moved to dismiss for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1), arguing that the complaint is preempted by the federal Nutrition Labeling and Education Act (the "NLEA"), 21 U.S.C. § 341 et seq. For the reasons discussed below, the motion is granted.

FACTS

The facts alleged in the amended complaint are taken as true for purposes of the instant motion. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). Defendants are Delaware corporations doing business in Illinois. Defendant Mills makes, distributes (through affiliates), and advertises "Fiber One chewy bars" in the Northern District of Illinois and throughout the United States. Mills also makes, distributes (through affiliates), and advertises "Fiber One NonFat Yogurt." Defendant Kellogg makes, distributes (through affiliates), and advertises "Fiber Plus Antioxidants chewy bars" in the Northern District of Illinois and throughout the United States.

Defendant Mills operates the website www.fiberone.com. The website states that fiber is found in "foods like beans and other legumes, fruits, and oat products," as well as, "whole grain products . . . and vegetables." The fiber found in the foregoing foods consists of non-digestible carbohydrates that are intrinsic and intact (i.e., found naturally) in plants. Plaintiff refers to such fiber as "natural fiber." Fiber can also be composed of non-digestible carbohydrates that have been isolated, concentrated, and chemically extracted from various plant sources. Plaintiff refers to this type of fiber as "non-natural fiber."

Kellogg advertises its "Fiber One Antioxidants chewy bars" on the front of the box as having "35% of your daily fiber" per bar. Mills does the same, advertising its "Fiber One chewy bars" on the front of the box as having "35% of your daily fiber" per bar. The fronts of "Fiber One Nonfat Yogurt" boxes state there are 5 grams of fiber per serving. All the foregoing products contain chicory root extract, which is primarily inulin, a non-natural fiber. Chicory root extract is the first ingredient listed on the food labels on all the foregoing products. Current scientific evidence does not show that inulin's health benefits are equal to those of natural fiber.

Plaintiff alleges that defendants have "violated the [CFA] by failing to disclose to consumers that their chewy bars and yogurt contain non-natural fibers, and have not been shown by current scientific evidence to possess all of the health benefits of natural fibers." In her prayer for relief, plaintiff asks for compensatory damages and declaratory and injunctive relief, including an order directing defendants to engage in a corrective advertising campaign.

DISCUSSION

Preemption

Defendants argue that plaintiff's claim is expressly preempted by the federal Nutrition Labeling and Education Act (the "NLEA"), 21 U.S.C. § 341 et seq., which establishes a regulatory scheme for food labeling and prohibits any state requirements that are "not identical" to its requirements. 21 U.S.C. §§ 343-1(a)(4)-(5). Under the Supremacy Clause, federal law preempts state law where any of the three forms of preemption are found: (1) express preemption; (2) field preemption; and (3) and implied preemption. Hillsborough County, Florida v. Automated Med. Labs Inc., 471 U.S. 707, 713 (1985). When determining the existence of preemption, courts are guided by two major principles. Wyeth v. Levine, 129 S.Ct. 1187, 1194 (2009). First, "the purpose of Congress is the ultimate touchstone in every pre-emption case."

Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)); Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). Second, "in areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention clear and manifest." Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005); Wyeth, 129 S.Ct. at 1194-95; Medtronic, 518 U.S. at 485; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Accordingly, defendants' preemption arguments must overcome the presumption against preemption because food labeling has been an area historically governed by state law. Holk v. Snapple Beverage Corp., 575 F.3d 329, 335 (3rd Cir. 2009) (citing Plumley v. Massachusetts, 155 U.S. 461, 472 (1894)).

The Federal Food, Drug and Cosmetic Act (the "FDCA") governs labeling and related claims that can be made with respect to food, drugs, cosmetic products, and medical devices. 21 U.S.C. § 301 et seq. The Food and Drug Administration (the "FDA") is an agency within the U.S. Department of Health and Human Services, responsible for regulating and supervising the safety and labeling of food, tobacco products, prescription and over-the-counter pharmaceutical drugs, and other products affecting public health. See generally Act of June 30, 1906, ch. 3915, 34 Stat. 768 (repealed and replaced by the FDCA, 21 U.S.C. § 301 et seq. (1938)) (creating the agency that would become the modern FDA). The FDCA authorizes the FDA to enforce its terms and issue further regulations in keeping with its framework. 21 U.S.C. § 371. The NLEA is a 1990 amendment to the FDCA, regulating nutrient content claims on food labels. 21 U.S.C. §§ 343(q), (r) . The NLEA provides that:

[N]o State or political subdivision of any State may directly or indirectly establish under any authority . . . any requirement for nutrition labeling of food that is not identical to the requirement of section 343(q) of this title . . . [or] any requirement respecting any claim of the type described in section 343(r)(1) of this title, made in the label or labeling of food that is not ...


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