Lavoie-Fern v. Hershey Co.

610 F.Supp.3d 661

Jane LAVOIE-FERN, et al., Plaintiffs,

v.The HERSHEY COMPANY, Defendant.

Civil No. 1:21-CV-1245

United States District Court, M.D. Pennsylvania.

Signed July 11, 2022

Walter T. Grabowski, Holland, Brady & Grabowski, P.C., Wilkes-Barre, PA, Jonathan Ellery Neuman, Law Offices of Jonathan E. Neuman, Esq., Fresh Meadows, NY, for Plaintiffs.

Christian E. Piccolo, Sun Pharmaceutical Industries, Inc., Princeton, NJ, Emmanuel Brown, Rebecca L. Trela, Faegre Drinker Biddle & Reath LLP, Philadelphia, PA, James A. Frederick, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Washington, DC, for Defendant.

MEMORANDUM

SYLVIA H. RAMBO, United States District Judge

Before the court is Defendant The Hershey Company's motion to dismiss the complaint for failure to state a claim. (Doc. 8.) For the reasons set forth below, the motion will be denied.

I. BACKGROUND

The following facts from the complaint are taken as true for the purpose of resolving Hershey's motion. Hershey produces and sells certain black licorice products, including black licorice Twizzlers and Good & Plenty candies, which contain glycyrrhizin, a sweetening compound derived from licorice roots. (Doc. 1 ¶¶ 9–10.) At certain levels of consumption, glycyrrhizin has been shown to have harmful effects on the body and cause abnormal heart rhythms, high blood pressure, edema or swelling, lethargy, and congestive heart failure (Id. ¶¶ 12, 15–16.)

Plaintiffs Jane Lavoie-Fern, Sherry Konwaler, Harvey Horowitz, and Marie Bruen allege that they consumed Hershey's black licorice candies and that the glycyrrhizin in the products caused them to suffer various injuries. (Id. ¶¶ 1–4, 25–70.) They assert claims for strict products liability and negligence based on Hershey's failure to warn consumers about glycyrrhizin's health risks. (Id. ¶¶ 72–75, 88–89.) Hershey has filed a motion to dismiss the complaint, which argues that Plaintiffs’ claims are expressly preempted under the Nutrition Labeling and Education Act of 1990 ("NLEA"). (Doc. 9 at 10.) The motion has been fully briefed and is ripe for review.

II. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In reviewing a 12(b)(6) motion, the court must "accept as true all well-pled factual allegations in the complaint and all reasonable inferences that can be drawn from them." Taksir v. Vanguard Grp. , 903 F.3d 95, 96–97 (3d Cir. 2018) (citation omitted). The facts alleged must be "construed in the light most favorable to the plaintiff." In re Ins. Brokerage Antitrust Litig. , 618 F.3d 300, 314 (3d Cir. 2010) (internal quotations, brackets, and ellipses omitted). But "[t]he court is not required to draw unreasonable inferences" from the facts. 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004).

The Third Circuit has detailed a three-step process to determine whether a complaint meets the pleading standard. Bistrian v. Levi , 696 F.3d 352 (3d Cir. 2012). First, the court outlines the elements a plaintiff must plead to state a claim for relief. Id. at 365. Second, the court must "peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth." Id. Third, the court "look[s] for well-pled factual allegations, assume[s] their veracity, and then ‘determine[s] whether they plausibly give rise to an entitlement to relief.’ " Id. (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). The last step is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

III. DISCUSSION

Hershey's motion argues that Plaintiffs’ claims should be dismissed because they are expressly preempted by the NLEA.¹ The doctrine of preemption is derived from the Supremacy Clause of the United States Constitution, which prescribes that the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. The doctrine operates to invalidate laws that "interfere with, or are contrary to, federal law." Hillsborough Cnty. v. Automated Med. Labs., Inc. , 471 U.S. 707, 712, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden , 22 U.S. 1, 9 Wheat. 1, 6 L.Ed. 23 (1824) ).

Three principal forms of preemption exist: express preemption, field preemption, and conflict preemption. Roth v. Norfalco LLC , 651 F.3d 367, 374 (3d Cir. 2011) (citing Farina v. Nokia, Inc. , 625 F.3d 97, 116 (3d Cir. 2010) ). Express preemption arises when a federal law "contains language so requiring" and is explicit regarding its preemptive effect. Id. (citations omitted). Field preemption occurs "by implication when Congress regulates a domain so pervasively that it leaves no room for state regulation." Id. (citing United States v. Locke , 529 U.S. 89, 111, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000) ). And conflict preemption applies "either where it is impossible to comply with both state and federal requirements ... or ‘where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ " Id. (internal citation omitted) (quoting Kurns v. A.W. Chesterton Inc. , 620 F.3d 392, 395–96 (3d Cir. 2010) ).

In determining whether a statute is preempted, "the purpose of Congress is the ultimate touchstone." Holk v. Snapple Beverage Corp. , 575 F.3d 329, 335 (3d Cir. 2009) (quoting Altria Group, Inc. v. Good , 555 U.S. 70, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (internal quotation omitted)). "In areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention clear and manifest."² Bates v. Dow Agrosciences LLC , 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (internal quotation marks omitted). This presumption against preemption imposes a duty on the court when interpreting an ambiguous statute "to accept the reading that disfavors pre-emption." Holk , 575 F.3d at 334 (quoting Bates , 544 U.S. at 449, 125 S.Ct. 1788 ). The NLEA amends the Federal Food, Drug, and Cosmetic Act, which tasks the Food and Drug Administration ("FDA") with ensuring that "foods are safe, wholesome, sanitary, and properly labeled." 21 U.S.C. § 393(b)(2)(A). The purpose of the NLEA amendment was to "clarify and to strengthen [the FDA's] authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about the nutrients in foods." Nat'l Council for Improved Health v. Shalala , 122 F.3d 878, 880 (10th Cir. 1997) (quoting H.R. Rep. No. 101–538, at 7 (1990)).

Under § 343(i)(2) of the NLEA, labels of food covered under the statute must list the "common or usual name" of each ingredient contained in the food, "in descending order of predominance by weight." 21 U.S.C. § 343(i)(2) ; 21 C.F.R. § 101.4(a)(1). The NLEA contains an express preemption provision that prohibits states from directly or indirectly imposing "any requirement for the labeling of food of the type required by [ § 343(i)(2) ] that is not identical to [that subsection's] requirement." 21 U.S.C. § 343-1(a)(2). Despite the expansive language of this preemption provision, the statute contains a broadly worded safety exception that limits its scope, by directing that the preemption clause "shall not be construed to apply to any requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food." Pub. L. No. 101–535, § 343-1(c)(2).

As an initial matter, Plaintiffs’ failure to warn claims are governed by the presumption against preemption. Matters of safety and public health, and specifically "the regulation of food and beverage labeling and branding," have "traditionally fallen within the province of state regulation." Holk , 575 F.3d at 334–35 (applying presumption to state law claims arising from beverage manufacture's misuse of the term "all natural" on its product labels). Hershey does not dispute the traditional role that states have played in the regulation of food labeling or otherwise substantively argue that the presumption should not apply in these circumstances. Accordingly, its express preemption argument "must overcome the presumption against preemption," and if the court is confronted with two plausible interpretations of the NLEA, it is required to accept the reading that disfavors preemption. Id. (quoting Bates , 544 U.S. at 449, 125 S.Ct. 1788 ).

Hershey's motion fails to overcome the presumption against presumption. Assuming for the sake of argument that Plaintiffs’ claims fall within the scope of the NLEA's express preemption provision, they are saved from preemption under the statute's safety exception. Plaintiffs’ state law claims allege that Hershey failed to warn black licorice customers about the health risks of consuming glycyrrhizin or too much glycyrrhizin, which include abnormal heart rhythms, high blood pressure, swelling, lethargy, and congestive heart failure. (See Doc. 1 ¶¶ 12, 58–61, 73, 80, 83.) The central question raised by each of Plaintiffs’ claims is therefore whether, under the circumstances, Pennsylvania law requires Hershey to provide a safety warning on the label of its black licorice products regarding the health risks associated with one of the product's components. And to the extent such a requirement is established, it would fall squarely within the language of the NLEA's safety exception as a "requirement respecting a statement in the labeling of food," which "provides for a warning concerning the safety of the food or component of the...