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Legal Update

Ninth Circuit Affirms Preemption of California Meat- and Poultry-Packaging Rule

26 February 2016
Mayer Brown Legal Update

The Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) impose requirements on meat producers with the goals of preventing adulterated or misbranded meat and meat products from being sold and ensuring that meat and meat products are slaughtered and processed under sanitary conditions. To promote uniformity of requirements across the country, each act contains an express preemption provision that prohibits states from imposing requirements that “are in addition to, or different than those” imposed by federal law.1

In Del Real, LLC v. Harris,2 the US Court of Appeals for the Ninth Circuit summarily affirmed an injunction that prevents the state of California from enforcing its statutory prohibition against “nonfunctional slack fill”—i.e., empty space between a product and its packaging that does not serve any statutorily specified purpose.

The FMIA and PPIA prohibit “misleading” fill, but both acts leave it to the Secretary of Agriculture to decide whether and how to specifically regulate in this area. While other federal laws limit the use of nonfunctional slack fill in various products, the Secretary of Agriculture has not promulgated similar regulations for meat and poultry. California argued that its prohibition against nonfunctional slack fill was not “in addition to, or different than” the FMIA and PPIA’s prohibition against “misleading” fill, relying on the other federal prohibitions against nonfunctional slack fill as support.

The Ninth Circuit disagreed. First, the court concluded that California’s specific regulation of slack fill undermined Congress’s goal of national uniformity in packaging standards. Second, the court read the FMIA and PPIA’s grant of discretion to the Secretary of Agriculture on whether to regulate fill standards as evidence of Congress’ intention to allow meat and poultry packaging to be subject to less specific regulation than other types of product packaging. Because California’s specific prohibition conflicted with this intention, it was preempted.

1 21 U.S.C. §§ 467e, 678.
2 --- F. App’x. ----, 2016 WL 611630, at *1 (9th Cir. Feb. 12, 2016).

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