Katie Bond and Samuel Butler Author WLF Legal Pulse Article on Ninth Circuit’s Ruling in an FDCA Preemption Case

Keller and Heckman Partner Katie Bond and Associate Samuel Butler authored a Washington Legal Foundation (WLF) Legal Pulse article, “Not an Erratum: Ninth Circuit Court Repudiates WLF Legal Pulse Post with Preemption Ruling.” The article follows up on a previous blog post by Katie and Samuel after the Ninth Circuit issued a ruling in an FDCA preemption case, Davidson v. Sprout Foods, Inc.

“In a 2–1 decision authored by Judge Schroeder, the Ninth Circuit said that the FDCA does not preempt plaintiffs from prosecuting a case based on the Sherman Law’s incorporation of the FDCA’s food labeling requirements,” noted Katie and Samuel. They then emphasized Judge Collins’ dissent on this point, indicating that he argued “that a plaintiff cannot sue based on allegations that conduct violates the FDCA, even if those allegations are recast as allegations that conduct violates the Sherman Act.”

“Judge Collins,” they continued, “pointed out that allowing private enforcement of standards adopted from federal law would ultimately amount to private enforcement of the federal standard.”

Katie and Samuel ended the article by pointing out “perhaps the most intriguing argument made by the dissent”: “the majority simply ignores the possibility of implied preemption.”

To read the full article, please click here.