A class action lawsuit alleging that food giant ConAgra violated California law by misrepresenting the sodium content of sunflower seeds by focusing exclusively on kernels has been reinstated by the Ninth Circuit Court of Appeals. Reversing a district court’s decision to dismiss the case, the court of appeals held that the consumer’s state law claims were not preempted by the Nutrition Labeling and Education Act and that fact issues remained as to whether the company’s failure to include sodium contained in the sunflower seeds’ coating was deceptive. Lilly v. ConAgra Foods, Inc., 2014 WL 644706 (9th Cir. February 20, 2014).
The lawsuit’s allegations focus on the coating on sunflower seeds. ConAgra Foods, Inc. sells several varieties of sunflower seeds under its “David” brand, including some in which the shells of the seeds are coated with salts, seasonings, and/or flavorings. The plaintiff alleges that the flavored coating placed on sunflower seed shells is intended to be ingested—and is ingested—before the inedible shell is spat out and the kernel eaten; that is what is expected before expectoration. Therefore, the sodium content in a “serving” of sunflower seeds, as stated on the package, should include the sodium contained in the edible coating.
The lawsuit alleges that ConAgra’s nutrition labeling violates California law by misrepresenting the sodium content of the sunflower seeds by focusing exclusively on the kernels. More specifically, the suit alleges that the listing of sodium in the Nutrition Facts Panel of these seeds either does not disclose the sodium content of “the sunflower seeds and the shell in the Nutrition Facts at all” or does not state the “salt content of the sunflower kernels and shells in equal prominence as it does the salt content of the sunflower kernels.”
According to the suit, “ConAgra’s Sunflower Seeds’ packages expressly state that the intended manner for consuming the Sunflower Seeds is to place the entire shell and the kernel in the mouth.” The complaint quoted the directions on the packaging itself: “[C]rack the shell with your teeth, eat the seed and spit the shell. Experienced seeders pop a handful of seeds in their mouth and store them in one cheek, then transfer a seed over to the other side with their tongue, crack it, then eat the seed and split [ sic ] the shell.” The plaintiff alleges that consumers following these instructions “ingest some, if not all, of the sodium from the sunflower seeds’ shell which is not reflected in the Nutrition Facts of the Products.”
Taking those allegations as true for the purposes of a motion to dismiss, the court of appeals held that the sodium content of the edible coating added to sunflower seed shells must, under federal law, be included in the nutritional information disclosed on a package of sunflower seeds. Because plaintiff’s state-law claims, if successful, would impose no greater burden than those imposed by federal law, the state law claims were not preempted. Thus, the court of appeals reversed the granting of the defendant’s motion to dismiss. Id.
FDA regulations state that manufacturers need not include the amount of sodium on “inedible components.” ConAgra argued the lawsuit was preempted by federal law because the suit was an attempt to force ConAgra into including the sodium content of an inedible portion of the food—the shell of the sunflower seed. The court of appeals disagreed because:
ConAgra’s argument simply ignores the fact that while the shells themselves are inedible, the coatings put on top of the shells most certainly are not inedible. To the contrary, the coatings impart flavor and are indisputably intended to be ingested as part of the sunflower seed eating experience. Indeed, these coatings come in flavors such as “Ranch” and “Nacho Cheese” precisely because they are to be consumed before the shell is discarded. The shell is not edible, but the coating is and is intended to be. Federal law requires that the sodium listings include the “edible portion” of a food. For that reason, the portion of the edible coating on the shell must be accounted for in the calculation of the sodium content. The asserted state law requirements that [the plaintiff] seeks to impose here are thus no different from federal law and not preempted.
The case was remanded to the district court to consider ConAgra’s argument that no reasonable consumer would be deceived by its labeling. More specifically, ConAgra argues that since the Nutrition Facts Panel on the sunflower seeds references only the kernels, any reasonable consumer would understand that the sodium listing did not include the amount on the shells. Because the district court never reached that issue, the court of appeals declined to address it.
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