Ninth Circuit Holds Anti-GMO Regulations in Hawaii Preempted by Federal and State Law

9thCirOn November 18, the US Court of Appeals for the Ninth Circuit held that federal and state law preempted three county laws in Hawaii that put restrictions on commercial farmers’ planting of genetically-engineered seeds.  The WLF Legal Pulse blogged about the oral arguments this summer.  The decisions, Atay v. County of Maui, Hawaii Papaya Industry Assoc. v. County of Hawaii, and Syngenta Seeds, Inc. v. County of Kauai, collectively represent a win in the fight against unscientific regulations on so-called Genetically Modified Organisms (GMO), and highlight the need for uniform, national rules.

The cases arose when the three Hawaii counties, Maui, Hawaii, and Kauai, passed anti-GMO ordinances.  Those of Maui and Hawaii banned outright the growing of genetically modified crops, while Kauai’s ordinance created an extensive public-disclosure scheme for anyone using certain pesticides—the application of which is an essential part of modern commercial farming.  Local farmers and seed suppliers challenged the three ordinances, alleging that they were preempted by federal and state law. Continue reading

Federal Judge “SLAPPs” Down Lawsuit Demanding “R” Rating for All Movies Depicting Tobacco Use

ratingsOn November 10, 2016, a California federal judge dismissed a putative class-action lawsuit designed to force the Classifications and Rating Administration (CARA) to give an “R” rating to any film containing tobacco use.  Alleging that around 200,000 young people would start smoking every year after seeing tobacco use in G, PG, and PG-13 rated movies, the plaintiff in Forsyth v. Motion Picture Association of America, Inc. sued the Motion Picture Association of America (MPAA) (CARA is operated as a division of the association), the National Association of Theater Owners, and various major movie studios.  Because injunctive relief alone isn’t enough in most class actions, the complaint also sought $20 million in damages. Continue reading

In Mixed Opinion, Ninth Circuit Allows “All Natural Fruit” Litigation to Continue While Decertifying Class

dolefruitOn September 30, just two weeks after hearing oral argument in the case (which we previewed here), the Ninth Circuit released an unpublished opinion in Brazil v. Dole Packaged Foods, partially reversing the district court.  The opinion correctly upheld the district court’s dismissal of one of Brazil’s “outlandish theor[ies]” and its decertification of the class.  Unfortunately, the Ninth Circuit relied on nonbinding FDA guidance and warning letters to evaluate what would mislead a reasonable consumer, reversing the district court’s dismissal of his other claims.  Although not officially precedential, the opinion is worth reviewing because it has the potential to guide lower courts and gives insight into the Ninth Circuit’s future food-labeling decisions. Continue reading

Ninth Circuit to Hear Oral Argument in Pair of Food-Labeling Cases

9thCirToday, September 12, the United States Court of Appeals for the Ninth Circuit will hear oral arguments in two class-action food-labeling cases.  The issues before the court are similar and the cases arise from nearly identical facts: the plaintiffs allege that the defendants’ product labels are false or misleading in violation of various state laws because they claim to be “natural.”  The appeals will also be heard by the same panel—Judges Fletcher, Christen, and Friedland.  In considering these two appeals, the Ninth Circuit will have a chance to set a major precedent that could either reduce the flow of food-labeling suits into California-based federal courts or open the spigot even wider.

The similarities between the two cases, Brazil v. Dole Packaged Foods, LLC and Briseno v. ConAgra, Inc., are striking.  The plaintiffs filed putative class actions alleging that the defendants violated various statutory and common-law causes of action by labeling some of their products as “All Natural” or “100% Natural.”  Brazil claims that Dole’s use of “All Natural” on several of its juices’ labels is false or misleading because the company added ascorbic acid (vitamin C) and citric acid.  Both additives occur naturally in the juice products.  Similarly, Briseno claims that ConAgra’s “100% Natural” label is false or misleading because the Wesson Oil in question contains genetically modified organisms (GMOs). Continue reading

California Appeals Court Protects Outside Counsel’s Factual Investigation as Privileged

City of Petaluma

City of Petaluma

In early June, a California court of appeal held in City of Petaluma v. Waters that the report resulting from a fact-finding investigation conducted by outside counsel for the City of Petaluma’s (the City) City Attorney was protected by attorney-client privilege and therefore undiscoverable.  The holding is notable because the court refused to read the privilege so narrowly as to only protect legal opinions and would not further encroach upon the outside-counsel relationship. Continue reading

At Oral Argument, Ninth Circuit Appeared Poised to Preempt Hawaii GMO Ordinances

9thCirOn June 15, 2016, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in three related bids to invalidate separate Hawaiian county ordinances.  The counties of Maui and Hawaii ban the cultivation of genetically engineered crops or plants, while Kauai County requires that cultivation of genetically modified organisms (GMOs) be annually disclosed to the county.  Opponents allege that the ordinances are preempted by state and federal statutes and regulations governing agriculture and “plant pests.”  Three separate federal district courts found that the ordinances were preempted, causing the counties, or their interested intervenors, to appeal to the Ninth Circuit. Continue reading

Post-“Spokeo,” More Suits Should Be Vulnerable to Article III Standing Attacks

supreme courtIn the wake of the U.S. Supreme Court’s decision in Spokeo Inc. v. Robins, defendants in pending cases where the only harm the plaintiff alleged is violation of a federal statute should be filing new motions to dismiss due to lack of Article III standing.  A Video Privacy Protection Act (VPPA) case decided recently by the First Circuit could provide an immediate opportunity to witness the impact of the Spokeo decision.

In Spokeo, the Court reaffirmed that plaintiffs must possess Article III standing to bring suit, and held that such standing required plaintiffs to allege that they were concretely injured by defendants’ actions.  The Court held that the Spokeo plaintiff’s mere allegation that the defendant violated the terms of the Fair Credit Reporting Act (FCRA) was not necessarily enough to provide standing.  Because Congress cannot abrogate standing requirements, even by providing private rights of action, each plaintiff must allege a concrete and particularized harm.  A “bare procedural violation” is not sufficient to confer standing, the Court explained.  Because the Ninth Circuit did not apply the correct standing test, the Court remanded the case for the lower court to determine whether the plaintiff could allege a concrete injury. Continue reading