Passing on Preemption: Ninth Circuit Holds That California’s Sherman Law Is Not Impliedly Preempted

While it rarely rules on questions of preemption, the Ninth Circuit took an even rarer step on July 1, 2024 when it took up the question of whether private parties can seek to enforce the provisions of California’s Sherman Law that parallel federal law.

Plaintiffs brought suit against Sprout Foods, Inc. (“Sprout”), a manufacturer of baby food, arguing that the labels on the baby food were deceptive and unlawful because they made statements regarding the nutritional content of the baby food, like “3g of Protein” and “5g of Fiber.” Plaintiffs alleged that Sprout’s baby food products were mislabeled under the “unlawful” prong of California’s Unfair Competition Law (UCL) because they were mislabeled under California’s Sherman Law.  Plaintiffs asserted that FDA regulations prohibit certain nutrient content claims on foods intended for children under the age of two and argued that Sprout’s products therefore violated those regulations and the identical provisions of California’s Sherman Law.  Sprout argued that Plaintiffs’ UCL “unlawful” prong claim was impliedly preempted because a violation of the Sherman Law requires a finding that the FDCA has been violated, and the FDCA, in turn, can be enforced only by the United States.  The lower court agreed with Sprout on the issue of preemption, holding that because a violation of the Sherman Law requires a finding that the FDCA has been violated, and the FDCA can be enforced only by the United States, Plaintiffs’ claims were preempted insofar as they originated from, were governed by, and terminated according to federal law.

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