[Cite as Arnold v. Kroger Co.,
2016-Ohio-190.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CHRISTOPHER ARNOLD, : APPEAL NO. C-150291
TRIAL NO. A-1404763
and :
O P I N I O N.
KRISTINA ARNOLD, :
Plaintiffs-Appellants, :
vs. :
THE KROGER CO., :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 22, 2016
Statman, Harris & Eyrich, LLC, Jeffrey P. Harris, Sylvie Derrien and Colleen M.
Hegge for Plaintiffs-Appellants,
Marshall Dennehy Warner and Ray C. Freudiger, and Venable, LLP, Roger A.
Colaizzi and Edward P. Boyle, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Plaintiffs-appellants Christopher and Kristina Arnold appeal the
judgment of the Hamilton County Court of Common Pleas dismissing their class-action
claims against defendant-appellee The Kroger Company (“Kroger”) for fraudulent
inducement, negligent misrepresentation, breach of express warranties, and violation of
the Ohio Deceptive Trade Practices Act and the Ohio Consumer Sales Practices Act. The
court dismissed their claims as preempted by the federal Poultry Products Inspection
Act (“PPIA”). We affirm.
The Arnolds’ Claims against Kroger
{¶2} The Arnolds purchased chicken labeled under Kroger’s Simple Truth
brand. These labels included statements that the chicken was “raised in a humane
environment” and/or “humanely raised.” The Arnolds assert these humane-treatment
claims are false and misleading because Kroger’s chickens are raised no differently than
any other chicken mass produced by its supplier, Perdue. They contend that Kroger had
injured Ohio consumers by charging a premium for the Simple Truth brand chicken
based on these false and misleading claims.
{¶3} As a result, the Arnolds filed a class-action complaint on behalf of
themselves and all other similarly situated purchasers of the Simple Truth brand
chicken.
Preemption
{¶4} In a single assignment of error, the Arnolds argue that the trial court
improperly dismissed their claims as preempted by the PPIA. The Arnolds assert that
the trial court erred in dismissing their claims for a variety of reasons. The crux of their
arguments is twofold: the labeling requirements under the PPIA (1) only give the United
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OHIO FIRST DISTRICT COURT OF APPEALS
States Department of Agriculture (“USDA”) and Food Safety and Inspection Service
(“FSIS”) the authority to regulate labeling related to the safety of poultry products for
human consumption, not living, on-farm chickens and (2) do not review the meaning of
claims regarding the humane treatment of animals.
{¶5} A judgment granting a Civ.R. 12(B)(6) motion to dismiss is subject to de
novo review. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,
2004-Ohio-4362,
814
N.E.2d 44, ¶ 5. In reviewing whether a motion to dismiss is proper, we accept all factual
allegations in the complaint as true.
Id.
{¶6} The USDA is empowered by Congress to regulate the quality of meat and
poultry products and has the authority to prohibit the misbranding of poultry products.
21 U.S.C. 457(b). The PPIA prohibits poultry labeling that is “false or misleading in any
particular.” 21 U.S.C. 458(a)(2) and 453(h)(1). Further, the FSIS is authorized to bar
the sale of poultry products with “any marketing or labeling” that it determines “is false
or misleading in any particular.” 21 U.S.C. 457(d).
{¶7} Under the Supremacy Clause of the United States Constitution, Congress
has the power to preempt state law. Ohio State Bldg. & Constr. Trades Council v.
Cuyahoga Cty. Bd. of Commrs., 98 Ohio St.3d 214,
2002-Ohio-7213,
781 N.E.2d 951, ¶
46. Federal preemption of state law can occur in three circumstances: (1) when
Congress expressly preempts state law; (2) where there is an actual conflict between
federal and state law, or (3) “when the scope of a [federal] statute indicates that
Congress intended federal law to occupy a field exclusively.” Kurns v. R.R. Friction
Prods. Corp., __ U.S. __,
132 S.Ct. 1261, 1265-1266,
182 L.Ed.2d 116 (2012).
{¶8} The trial court held that the PPIA expressly preempts the field of poultry
labeling. Indeed, the Sixth Circuit has held that the terms of the Federal Meat
Inspection Act (“FMIA”) were not simply minimum standards, but instead, “the Federal
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OHIO FIRST DISTRICT COURT OF APPEALS
Act fixes the sole standards.” Armour & Co. v. Ball, 468 F.2d 76, 84 (6th Cir.1972)
(holding that the FMIA preempted a Michigan law requiring higher ingredient
requirements for labeling of sausages). However, “the existence of a private right of
action under federal law is antecedent of complete preemption.” Rogers v. Tyson
Foods, Inc.,
308 F.3d 785, 788 (7th Cir.2002); e.g., Strong v. Telectronics Pacing Sys.,
Inc.,
78 F.3d 256, 260 (6th Cir.1996). Since the PPIA does not provide a private right of
action, it does not command field preemption.
Rogers at 790.
{¶9} The PPIA expressly preempts states from imposing:
[m]arketing, labeling, packaging, or ingredient requirements (or storage
or handling requirements … [that] unduly interfere with the free flow
of poultry products in commerce) in addition to, or different than, those
made under … [the PPIA] with respect to articles prepared at any
official establishment in accordance with the requirements under this
chapter ….
21 U.S.C. 467(e). This clause sweeps broadly. See Natl. Meat Assn. v. Harris, __
U.S.__, 132 S.Ct. 965, 970,
181 L.Ed.2d 950 (2012) (finding that the nearly identical
preemption provision set forth in the FMIA sweeps broadly).
{¶10} On its face, the preemption clause prohibits states from mandating any
additional or different labeling requirements. The question is whether it preempts state-
law damages actions. Such common-law damages actions are “premised on the
existence of a legal duty.” Cipollone v. Liggett Group, 505 U.S. 504, 522,
112 S.Ct. 2608,
120 L.Ed.2d 407 (1992). In Cipollone, the court held that since the language of the
Public Health Cigarette Smoking Act of 1969, 15 U.S.C. 1331-1340, prohibited any
“requirement[s] or prohibition[s]” imposed under state law, the act preempted
common-law damages actions.
Id. The court explained that, while “the common law
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OHIO FIRST DISTRICT COURT OF APPEALS
would not normally require a vendor to use any specific statement on its packages or in
its advertisements, it is the essence of the common law to enforce duties that are either
affirmative requirements or negative prohibitions.” Id. Likewise, here, the PPIA
prohibits additional or different marketing, labeling, packaging, or ingredient
requirements that are “imposed by any State or Territory or the District of Columbia.”
21 U.S.C. 467(e). But, while the PPIA preemption clause is effective to preempt claims, it
would not bar all. See
Cipollone at 523 (explaining that cigarette act would preempt
some claims, it would not preempt others, such as claims asserting manufacturing
defects). Thus, the question here is whether the legal duty upon which each damages
action is predicated constitutes an additional or different marketing, labeling, packaging,
or ingredient requirement imposed by Ohio. See
Cipollone at 523. We find that the
Arnolds’ claims attempt to require additional or different requirements, and thus, are
preempted.
{¶11} The Arnolds have not alleged that Kroger violated any federal laws or
regulations, nor do they assert that Kroger failed to comply with the poultry labeling
requirements set forth in the PPIA. Instead, the Arnolds claim that Kroger’s use of the
terms “humanely raised” and “humane environment” on its labels was false and/or
misleading. The Arnolds have conceded, albeit somewhat indirectly, that the FSIS
approved Kroger’s labels. As part of this approval, the FSIS determines whether the
labels are false or misleading. See 21 U.S.C. 457. Therefore, because the preapproval
process includes a determination regarding whether the label is false or misleading, and
the Arnolds’ claims hinge on that very determination, any liability the Arnolds seek to
impose based on their state-law claims would attach additional or different terms to
Kroger’s labeling. See Kuenzig v. Hormel Foods Corp., 505 Fed.Appx. 937, 938-939
(11th Cir.2013). Thus, their claims are expressly preempted by federal law. See
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OHIO FIRST DISTRICT COURT OF APPEALS
Meaunrit v. ConAgra Foods, Inc., N.D.Cal. No. C 09-02220 CRB, 2010 U.S. Dist. LEXIS
73599, *21 (July 20, 2010).
{¶12} Furthermore, the Arnolds argument that their claims are not preempted
because the PPIA’s review of labels is limited to labels “concerning the dead chicken
carcass[es]” with regard to protecting the health and safety of the public, not the living
conditions of on-farm chickens, is unpersuasive. The PPIA charges the FSIS with
inspecting and approving all poultry labeling in order to prevent the sale of poultry
products that are “misbranded.” See 21 U.S.C. 457. Congress declared that the purpose
of the PPIA is to provide for the
inspection of poultry and poultry products and otherwise regulate the
processing and distribution of such articles as hereinafter prescribed to
prevent the movement or sale in interstate or foreign commerce of, or the
burdening of such commerce by poultry products which are adulterated
or misbranded.
21 U.S.C. 452. Under the PPIA, “misbranded” means “any poultry product” where “its
labeling is false and misleading in any particular.” 21 U.S.C. 453(h)(iii). The statute
defines “poultry product” as “any poultry carcass or part thereof.” 21 U.S.C. 453(h)(i).
{¶13} The PPIA states that assuring poultry products are “wholesome, not
adulterated, and properly marked, labeled, and packaged” is essential to the public
interest of protecting the health and welfare of consumers, because the distribution of
“unwholesome, adulterated, or misbranded poultry products” is harmful to the public
welfare and markets for quality poultry products, and causes “losses to poultry
producers and processors of poultry and poultry products, as well as injury to
consumers.” 21 U.S.C. 451. Further, the FSIS has determined that humane treatment of
poultry directly implicates its fitness for human consumption because “under the PPIA,
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OHIO FIRST DISTRICT COURT OF APPEALS
poultry products are more likely to be adulterated if, among other circumstances, they
are produced from birds that have not been treated humanely,” which may result in
poultry that is “not acceptable for human food.” Treatment of Live Poultry Before
Slaughter, 70 Fed.Reg. 56,624-25 (Sept. 28, 2005).
{¶14} The Arnolds rely heavily on Chacanaca v. Quaker Oats Co., 752
F.Supp.2d 1111 (N.D.Cal.2010), for support. There, the trial court held that many of the
plaintiff’s claims were preempted by the Federal Food, Drug and Cosmetic Act
(“FDCA”), but their claims that the use of images and other phrases, including the word
“wholesome,” was deceptive were not preempted.
Id. However, the FDCA contains a
savings clause, and its preemption clause is narrow. See
id. at 1118; 21 U.S.C. 343-
1(a)(4)-(5).
{¶15} We hold that the trial court properly dismissed the Arnolds’ complaint
for failure to state a claim upon which relief could be granted under Civ.R. 12(B)(6), and
we overrule the Arnolds’ sole assignment of error.
Conclusion
{¶16} The judgment of the trial court is affirmed.
Judgment affirmed.
M OCK and S TAUTBERG , JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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