Simpson v. Kroger Corp.

Filed 9/25/13
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

MARY L. SIMPSON, B242405

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC475665)
v.

THE KROGER CORPORATION, et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County,
BarbaraM. Scheper, Judge. Affirmed.
Morris Polich & Purdy, Jens B. Koepke and David J. Vendler for Plaintiff and
Appellant.
Kelley Drye & Warren, Keri E. Campbell, Sarah L. Cronin, Kenneth D. Kronstadt,
Sarah Roller and Donnelly McDowell for Defendants and Respondents.

______________________________

1
 The issue in this case is whether products produced by defendant Challenge Dairy
Products, Inc. and sold by defendant The Kroger Corporation in its supermarkets, which
combine butter with canola oil or olive oil, are mislabeled under state and federal law. In
her opening brief, plaintiff Mary L. Simpson claims the products are not ―butter‖ and that
they were mislabeled in violation of federal and state law by being labeled ―spreadable
butter with‖ either canola oil or a combination of canola and olive oil. In her reply brief,
plaintiff changes her theory and asserts that her claim is that the additional oils are not
identified with requisite prominence on the labels. Defendants argue that the California
food labeling statutes under which plaintiff sues are preempted by federal food labeling
standards. They contend that under controlling federal law, the products are properly
labeled with their usual and common names, i.e., butter with canola oil or with olive and
canola oil.
We conclude that the labeling requirements of the California Milk and Milk
Products Act of 1947 (Food & Agr. Code, § 32501 et seq., (MMPA)) are not identical to
the applicable federal labeling requirements and therefore plaintiff‘s claims under the
MMPA are preempted; that plaintiff‘s mislabeling claims under the California Sherman
Food, Drug and Cosmetic Law (Health & Saf. Code, § 109875 et seq. (Sherman Law))
are not preempted by federal law; and that the trial court did not abuse its discretion in
denying leave to amend to allege claims based on violation of the Sherman Law because,
as a matter of law, plaintiff has failed to demonstrate that a reasonable consumer would
be misled by the labels on the products.

FACTUAL AND PROCEDURAL SUMMARY
In October 2011, plaintiff purchased a tub of one of the relevant products at her
1
local Ralphs supermarket. She alleges that she purchased the product because she was
already familiar with whipped butter products that are spreadable. Only when she got

1
The first amended complaint alleges that The Kroger Corporation operates
Ralphs supermarkets throughout California.

2
home did she realize ―that the product she purchased was not in fact butter, but contained
edible oils and other ingredients.‖ The action concerns two Challenge butter products,
but the complaint does not state which was purchased by plaintiff.
Challenge Spreadable Butter with Canola Oil is packaged in a tub. On the top
panel of the tub the color backdrop depicts a mountain scene with a stag. At the top of
this scene is a blue ribbon banner with white lettering with the words: ―CHALLENGE
BUTTER.‖ To the left of the stag on a red ribbon banner in smaller yellow type are the
words: ―with DHA Omega-3 [¶] Supports Healthy Brain & Eyes.‖ To the right of the of
the stag there is a red oval with lettering in yellow type stating ―Soft [¶] Even When [¶]
Cold.‖ Below the stag is a long yellow banner with the words ―SPREADABLE
BUTTER‖ in capital letters in blue type which is larger than the type in the red portions
of the label. Centered at the bottom of this yellow banner is a blue banner with smaller
white type stating ―WITH CANOLA OIL.‖ Underneath this statement, in white type of
the same size is the word ―SPREAD.‖ The label on the side of the tub is the same except
the word ―SPREAD‖ is omitted. The label on the bottom panel of the tub lists the
ingredients: ―Pasteurized Cream (derived from milk). Canola Oil, Salt, Vitamin A
2
Palmitate, Beta Carotene, DHA, Algal Oil.‖
Challenge Tuscan Style Spreadable Butter is sold in a tub with similar labeling.
The label on the top of the tub is a color backdrop depicting white buildings with red
roofs against a rolling pastoral landscape. The label ―CHALLENGE BUTTER‖ appears
at the top of the landscape in white lettering on a red banner. Below and to the left is a
blue ribbon banner stating in yellow type ―with Olive Oil‖ in smaller print. Below that,
on the blue ribbon, and in smaller white type appears ―Garlic & Italian Herbs.‖ In the
center bottom of the top label in red lettering on a gold banner are the words ―TUSCAN
STYLE‖ in larger type. Immediately below is a blue banner with smaller white lettering
stating: ―SPREADABLE BUTTER with CANOLA & OLIVE OIL.‖ Centered below

2
Copies of the top, side, and bottom labels of Challenge Spreadable Butter with
Canola Oil are attached to this opinion as appendices A, B, and C, respectively, post,
pages 20–22.
3
that statement is the word ―SPREAD‖ in the same size type. The side panel is the same,
but the word ―SPREAD‖ is omitted. The bottom panel on the tub lists the ingredients:
―Pasteurized cream (derived from milk), canola oil, olive oil, roasted garlic puree, natural
3
flavors, garlic puree, dried garlic, spices, sea salt, vitamin A palmitate, beta carotene.‖
The operative pleading in this case is the first amended complaint, a putative class
action alleging causes of action for unfair competition (Bus. & Prof. Code, § 17200 et
seq.), false advertising (Bus. & Prof. Code, § 17500 et seq.), and violation of the
Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.). Plaintiff sought damages, a
permanent injunction prohibiting the sale of margarine, spread, or dairy spread if not in
compliance with the provisions of the MMPA, costs and fees.
Defendants jointly demurred to the complaint on the ground that the products were
properly labeled under the MMPA. They also argued the MMPA is expressly and
impliedly preempted by the federal Food Drug and Cosmetic Act (FDCA) (21U.S.C.
4
§ 301 et seq.). In opposition, plaintiff argued that the products are a ―spread‖ rather than
―butter‖ under the definitions of the MMPA. In arguing that her claims under the MMPA
are not preempted by the FDCA, plaintiff cited a provision of the Sherman Law which
incorporates Federal Drug Administration (FDA) regulations regarding the branding of
food (Health & Saf. Code, § 110100, subd. (a)). But she did not seek leave to amend to
allege a cause of action under the Sherman Law.
The trial court agreed with defendants, finding that plaintiff‘s California claims
were preempted. The court found that the products are nonstandardized butter, for which
there is a federal labeling requirement, but no comparable California labeling
requirement. The court denied leave to amend because an amendment could not address
the legal issues on which its ruling was based. The action was dismissed with prejudice.

3
Copies of the top, side, and bottom labels of Challenge Tuscan Style Spreadable
Butter with Canola Oil & Olive Oil are attached to this opinion as appendices D, E, and
F, respectively, post, pages 23–25.
4
All further unlabeled statutory references are to Title 21 of the United States
Code.
4
An order of dismissal with prejudice was entered. Plaintiff appeals from the order of
dismissal. ―We apply a de novo standard of review because this case was resolved on
demurrer [citation] and because federal preemption presents a pure question of law
[citation].‖ (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10.)

DISCUSSION
I
The labeling of food products is heavily regulated by both federal and state law.
The gravamen of the first amended complaint is that the labels on the products at issue
violate the MMPA. On appeal, the thrust of plaintiff‘s argument shifted. Her primary
argument became that she should have been granted leave to amend to allege the labels
violated the Sherman Law, rather than the MMPA, a claim which she argues is not
preempted. She also argues that her MMPA claims are not preempted. We address both
the MMPA and the Sherman Law as a basis for plaintiff‘s claims.
Under both the FDCA and the Sherman Law, foods fall into two broad groups:
those for which a definition and standard of identity has been created by federal
regulation, and those not defined by federal regulation. Under the FDCA, regulations
may be promulgated ―fixing and establishing for any food, under its common or usual
name so far as practicable, a reasonable definition and standard of identity. . . .‖ (21
U.S.C. § 341.) Butter is expressly excepted from this: ―No definition and standard of
5
identity and no standard of quality shall be established for . . . butter . . . .‖ (21 U.S.C.
§ 341.)
We refer to the first group as ―standardized foods‖ and the second as
―nonstandardized foods.‖ The parties disagree as to whether the food products at issue

5
See also 58 Federal Register 2449-52 (Jan. 6, 1993), in which the FDA
recognizes that it does not have the authority to establish a definition and standard of
identity for light butter in light of section 341.

5
here are standardized or nonstandardized foods. As we discuss, this categorization of
foods impacts the preemption analysis.
A. FDCA
―The FDCA prohibits the misbranding of any food. (§ 331(b).) A food ‗shall be
deemed to be misbranded‘ under the FDCA if ‗its labeling is false or misleading in any
particular . . . .‘ (§ 343(a).)‖ (Farm Raised Salmon Cases, supra, 42 Cal.4th at p. 1085.)
In 1990 the FDCA was amended by the Nutrition Labeling and Education Act of 1990
(NLEA) with the purpose of ―creat[ing] uniform national standards regarding the labeling
of food and to prevent states from adopting inconsistent requirements with respect to the
labeling of nutrients. [Citation.]‖ (Id. at pp. 1085–1086.) ―To that end, the NLEA
included an explicit preemption provision in the form of section 343-1(a)
[citation], which provides that ‗no State or political subdivision of a State may directly or
indirectly establish under any authority or continue in effect as to any food in interstate
commerce—[¶] . . . [¶] (3) any requirement for the labeling of food of the type required
by section . . . 343(k) of this title that is not identical to the requirement of such
6
section . . . .‘ (§ 343-1(a), italics added.)‖ (Id. at p. 1086.)
There is no private right of action under the FDCA. (Merrell Dow
Pharmaceuticals, Inc. v. Thompson (1986) 478 U.S. 804, 810–811.) Under section 343-
1, states may establish their own requirements so long as they are identical to those in the
FDCA. (Farm Raised Salmon Cases, supra, 42 Cal.4th at p. 1086, [quoting 60 Fed.Reg.
57120 (Nov. 13, 1995) ―under FDA regulations, ‗if the State requirement is identical to
Federal law, there is no issue of preemption‘‖].)
The FDCA defines ―butter‖ to mean ―the food product usually known as butter,
and which is made exclusively from milk or cream, or both, with or without common salt,

6
The Supreme Court recognized that ―FDA regulations make clear that the phrase
‗not identical to‘ in section 343-1(a)(3) ‗does not refer to the specific words in the
requirement.‘ (21 C.F.R. § 100.1(c)(4) (2007).)‖ (Farm Raised Salmon Cases, supra,
42 Cal.4th at p. 1086, fn. 8.) Even if the words used in the state requirement are not
exactly the same, the requirement is effectively the same so long as the state requirement
does ―the same thing that the Federal law does.‖ (Ibid.)
6
and with or without additional coloring matter, and containing not less than 80 percentum
by weight of milk fat, all tolerances having been allowed for.‖ (§ 321a.) ―Cream‖ is
defined in the Code of Federal Regulations as ―the liquid milk product high in fat
separated from milk, which may have been adjusted by adding thereto: Milk,
concentrated milk, dry whole milk, skim milk, concentrated skim milk, or nonfat dry
milk. Cream contains not less than 18 percent milkfat.‖ (21C.F.R. § 131.3(a).) Specific
definitions and standards of identity have been adopted for other milk and cream
products, such as sour cream, half-and-half, and yogurt. (21 C.F.R. §§ 131.110–
131.206.) There is no specific federal definition or standard of identity for butter
combined with canola or olive oil.
Section 347 of the FDCA governs labeling of margarine. The definition of
margarine for purposes of section 347 is stated in Title 15 United States Code section
55(f)(2) as including: ―all substances, mixtures, and compounds which have a
consistence similar to that of butter and which contain any edible oils or fats other than
milk fat if made in imitation or semblance of butter.‖ (Italics added.) Margarine is a
standardized product under FDA regulations, defined as food in plastic form or emulsion,
containing not less than 80 percent fat produced from a number of specified optional
agreements, which include edible fats and oils, milk or milk products, and flavoring
substances. (21 C.F.R. § 166.110.) Any flavoring substance which imparts a flavor
―other than in semblance of butter‖ must be declared as part of the name of the food.
(21 C.F.R. § 166.110(b)(7).) Each ingredient used in margarine must be declared on the
label. (21 C.F.R. § 166.110(d).)
Section 343(i) regulates labeling of nonstandardized foods. It requires the label to
bear the common or usual name of the food, and if two or more ingredients are included,
the common or usual name of each food except spices and flavorings must be on the
label.
B. MMPA
The MMPA defines ―butter‖ as ―the product made by gathering the fat of fresh or
ripened milk or cream into a mass, which also contains a small portion of other milk
7
 7
constituents.‖ (Food & Agr. Code, § 37161.) Cream is defined as ―that portion of milk,
rich in milk fat, which rises to the surface of milk that is left standing or which is
separated from milk by centrifugal force.‖ (Food & Agr. Code, § 32504.) Section 37164
of the MMPA defines ―flavored butter‖: ―Butter flavored with spices, condiments, garlic,
chives, herbs, or other flavoring may be sold in whipped or solid form, provided the
product meets the following requirements: [¶] (a) The butter, before flavoring, meets all
of the requirements for USDA 93 score (AA Grade) butter. [¶] (b) The principal flavor is
identified on the container with equal prominence with the word ‗butter.‘ [¶] (c) The
principal display panel has a list of all ingredients in the descending order of
predominance, and identifies the name and address of the manufacturer. [¶] (d) The
product is processed in a licensed milk products plant. [¶] (e) The product contains no
preservative.‖ (Food & Agr. Code, § 37164, italics added.)
―‗Milk product‘ or ‗dairy product‘ means any product which is prepared or
manufactured from milk, for which product a standard of composition is established by
this division, and any new milk product or combination milk and food product for which
a temporary standard of composition is established pursuant to Chapter 1 (commencing
with Section 36601) of Part 3. ‗Milk product‘ or ‗dairy product‘ does not include
8
‗products resembling milk products‘ as defined in Section 38912.‖ (Food & Agr. Code,
§ 32512.) ―‗Nondairy product‘ means a product resembling a milk product, but which
nondairy product contains no milk or milk solids.‖ (Food & Agr. Code, § 38915.)
The MMPA also defines ―margarine,‖ ―dairy spread,‖ and ―spread.‖ Plaintiff
makes no argument that the products here constitute either ―margarine‖ or ―dairy spread‖
contending only that they are a ―spread‖ under the MMPA.

7
Butter may contain salt or a harmless coloring matter. (Food & Agr. Code,
§ 37163.)
8
Food and Agricultural Code section 38912 defines ―‗products resembling milk
products‘‖ as ―any food product . . . which has the appearance, taste, smell, texture or
color of a milk product and which, taken as a whole, bears resemblance to a milk product,
could be mistaken for a milk product, or could be used as a substitute for a milk product.‖
8
 ―Spread‖ is defined as ―a substitute for butter consisting of mixtures of compounds
which may include milk solids-not-fat and edible oils and fats that is made in imitation or
semblance of butter and does not meet the definition for margarine or dairy spread.‖
(Food & Agr. Code, § 39521.) In opposition to defendants‘ demurrer, plaintiff noted that
defendants had conceded that their products did not fit the definitions for margarine or
dairy spread.
Under the MMPA, ―[i]t is unlawful for any person to sell any margarine, dairy
spread, or spread, unless there is printed upon the label of each and every package, or
other container . . . all of the following: [¶] (a) The words ‗oleomargarine,‘ ‗margarine,‘
‗dairy spread,‘ or ‗spread,‘ as the case may be in letters which are at least as large as any
other type or lettering on the label. The word ‗oleomargarine,‘ ‗margarine,‘ ‗dairy
spread,‘ or ‗spread,‘ shall be of a color in strong contrast to the color of the container.
[¶] . . . [¶] (d) A full and accurate statement of all the ingredients which are contained in
the substance in the package.‖ (Food & Agr. Code, §§ 39411, 39382, italics added.)
Margarine, dairy spread, or spread may not be sold under the name of butter, under the
pretense that it is butter, or that it is a dairy product. (Food & Agr. Code, §§ 39431,
39432.)
C. Sherman Law
―Like the FDCA, the Sherman Law broadly prohibits the misbranding of food,‖
which is defined as labeling that is false or misleading in any particular. (Farm Raised
Salmon Cases, supra, 42 Cal.4th at p. 1086; see also Health & Saf. Code, §§ 110660,
110765.) ―[T]he Sherman Law incorporates ‗[a]ll food labeling regulations and any
amendments to those regulations adopted pursuant to the [FDCA]‘ as ‗the food labeling
regulations of this state.‘ (Health & Saf. Code, § 110100, subd. (a).)‖ (Id. at p. 1087.)
Under the Sherman Law, a food is misbranded ―if it is offered for sale under the
name of another food, or if it is an imitation of another food for which a definition and
standard of identity has been established by regulation and its label does not bear, in type
of uniform size and prominence the word ‗imitation,‘ and immediately following, the
name of the food imitated.‖ (Health & Saf. Code, § 110685.) A food also is misbranded
9
―if it purports to be, or is represented as, a food for which a definition and standard of
identity has been established under Section 110505 and the label fails to bear the name of
the food specified in the standard or otherwise fails to conform to the definition and
standard.‖ (Health & Saf. Code, § 110710.) ―Any food for which no standard of identity
exists is misbranded unless it bears a label clearly stating the common or usual name of
the food.‖ (Health & Saf. Code, § 110720.)
―Any food is misbranded if its labeling does not conform with the requirements
for nutrient content or health claims set forth in Section 403(r) (21 U.S.C. Sec. 343(r)) of
the federal act and the regulations adopted pursuant thereto.‖ (Health & Saf. Code,
§ 110670.) ―Any food is misbranded if any word, statement, or other information
required pursuant to this part to appear on the label or labeling is not prominently placed
upon the label or labeling with conspicuousness, as compared with other words,
statements, designs, or devices in the labeling and in terms as to render it likely to be read
and understood by the ordinary individual under customary conditions of purchase and
use. (Health & Saf. Code, § 110705.)
II
Preemption is an issue in this case principally because of the express preemption
provision added to the FDCA in 1990 by adoption of the NLEA. Section 343-1(a)
provides: ―Except as provided in subsection (b) [of this section], no State or political
subdivision of a State may directly or indirectly establish under any authority or continue
in effect as to any food in interstate commerce—[¶] (1) any requirement for a food which
is the subject of a standard of identity established under section [341 of this title] that is
not identical to such standard of identity or that is not identical to the requirement of
section [343(q) of this title]. . . .‖ (Italics added.) Section 343-1(a)(2) applies to ―any
requirement for the labeling of food of the type required by section . . . [343(i)(2)] . . .
that is not identical to the requirement of such section . . . .‖ Similarly, section 343-
1(a)(3) applies to any requirement for labeling of food of the type required by section
343(i)(1) that is not identical to the requirement of that section.

10
 Section 343(i) sets the requirements for labeling of foods where there is no
representation that a definition and standard of identity has been created for that food,
i.e., nonstandardized foods as we have defined them. It requires that a nonstandardized
food have a label bearing ―(1) the common or usual name of the food, if any there be, and
(2) in case it is fabricated from two or more ingredients, the common or usual name of
each such ingredient . . . except that spices, flavorings, and colors not required to be
certified under section [379e(c) of this title] . . . may be designated as spices, flavorings,
and colorings without naming each. . . .‖ (§ 343(i).)
The impact of section 343-1(a)(2), read with section 343(i), is that the express
preemption clause of the FDCA applies to labeling of nonstandardized food products. In
addition, section 343-1(a)(3) extends express preemption to any food ―offered for sale
under the name of another food.‖ (See § 343(b).)
The California Supreme Court addressed whether section 343-1 preempted
California laws regulating the labeling of farm raised salmon fed food containing
artificial color additives in Farm Raised Salmon Cases, supra, 42 Cal.4th 1077. FDA
regulations allowed the use of color additives in salmon feed, but required that it be
declared in labeling. (Id. at p. 1085.) The court first concluded that the Sherman Law
labeling requirements were identical to those in section 343(k) of the FDCA, which
addresses the labeling of foods containing artificial coloring. The Sherman Law used
language identical to section 343(k) to require disclosure of the additives in labels. The
Supreme Court also relied on the Sherman Law‘s express incorporation of all food
labeling regulations of the FDCA as ―‗the food labeling regulations of this state.‘ (Health
& Saf. Code, § 110100, subd. (a).)‖ (Farm Raised Salmon Cases, at pp. 1086–1087.)
The party who claims preemption has the burden of demonstrating that it applies.
(Farm Raised Salmon Cases, supra, 42 Cal.4th at p. 1088.) The analysis of a preemption
question must take into account the strong presumption against preemption. (Ibid.) The
presumption applies to the existence as well as the scope of preemption. (Ibid.) The
court in Farm Raised Salmon Cases concluded that this presumption applied with
particular force in that case because laws regulating the proper marketing of food,
11
including the prevention of deceptive sales practices, are within the states‘ historic police
powers. (Ibid.)
In Farm Raised Salmon Cases, the defendants asserted only that the plaintiffs‘
claims were impliedly preempted because they created an obstacle to the accomplishment
and execution of the full purposes and objective of Congress in enacting the FDCA.
(Farm Raised Salmon Cases, supra, 42 Cal.4th at p. 1089.) Unlike the case before us,
there was no claim of express preemption because the state and federal requirements
were identical. The Supreme Court held that Congress had not ―expressly preempted
private claims predicated on state laws imposing requirements identical to those
contained in the FDCA . . . .‖ (Ibid.) The court concluded: ―Accordingly, the state
requirements at issue here are explicitly permitted by section 343-1. (See Consumer
Justice [Center v. Olympian Labs, Inc. (2002)] 99 Cal.App.4th [1056,] 1065 [‗[s]tates can
enforce labeling rules which are identical. . . . ‘ (original italics)].)‖ (Id. at p. 1090.)
The Supreme Court said that while Congress clearly intended to allow states to establish
their own identical laws, it said nothing about limiting the range of available remedies
states might provide for violation of those laws, such as private actions. (Ibid.) It found
nothing in the legislative history suggesting a sweeping preemption of private actions
predicated on requirements contained in state laws. (Ibid.)
The court in Farm Raised Salmon Cases found support in an uncodified provision
of NLEA (section 6(c)(1)): ―Further undermining defendants‘ interpretation is the fact
that Congress made clear that the preemptive scope of section 343-1 was to sweep no
further than the plain language of the statute itself. In NLEA section 6(c)(1) (an
uncodified provision), Congress provided that ‗[t]he NLEA shall not be construed to
preempt any provision of State law, unless such provision is expressly preempted under
[section 343-1] of the [FDCA].‘ (Pub.L. No. 101-535, § 6(c)(1) (Nov. 8, 1990), 104 Stat.
2364.)‖ (Farm Raised Salmon Cases, supra, 42 Cal.4th at p. 1091.) The court found that
this uncodified provision signified an intent to allow state and federal regulation to
coexist. ―‗Where Congress establishes a regime of dual state-federal regulation,
―conflict-pre-emption analysis must be applied sensitively . . . so as to prevent the
12
diminution of the role Congress reserved to the States while at the same time preserving
the federal role.‖ [Citations.]‘ (Viva! International [Voice for Animals v. Adidas
Promotional Retail Operations, Inc. (2007)] 41 Cal.4th [929,] 942.)‖ (Id. at pp. 1091–
1092, fn. omitted.) The court also found the uncodified provision significant ―because it
informs our analysis of the existence of any implied preemption: ―‗[A]n express
definition of the pre-emptive reach of a statute ―implies‖—i.e., supports a reasonable
inference—that Congress did not intend to pre-empt other matters . . . . [Citation.]‖ (Id.
at p. 1092.) It concluded that ―deference should be paid to Congress‘s detailed attempt to
clearly define the scope of preemption under the FDCA. [Citation.]‖ (Ibid.)
The Supreme Court recognized that ―Congress enacted numerous specific express
preemption provisions in the FDCA. [Citation.]‖ (Farm Raised Salmon Cases, supra,
42 Cal.4th at p. 1092.) It concluded that in combination with section 343-1, these
provisions demonstrated ―Congress‘s care in deciding what to preempt and what to allow.
Section 343-1 is notable both for the number of misbranding provisions it deals with
(approximately 20) and for the detailed nature of its preemptive scope. The language of
section 343-1 and the NLEA‘s express preemption provision is further evidence that
Congress chose carefully the manner with which it preempted certain state labeling
laws.‖ (Farm Raised Salmon Cases, at p. 1092, fn. omitted.)
In Farm Raised Salmon Cases, supra, 42 Cal.4th 1077, the Supreme Court
concluded ―that Congress intended to allow states to establish their own requirements so
long as they are identical to those contained in section [343 of the FDCA] . . . .‖ (Id. at
p. 1094, italics added.) It also concluded that Congress did not intend to limit the scope
of state remedies for violations of state laws identical to the FDCA. (Id. at p. 1095.) The
preemption issue, therefore, turns on whether the labeling requirements of California law
are identical to those of the FDCA.
III
The cornerstone of plaintiff‘s argument is that the trial court should have allowed
her leave to amend to allege violations of the Sherman Law labeling requirements
because they are identical to those under section 343-1 of the FDCA and are therefore not
13
preempted. She contends that she should be allowed to raise this issue even though it
was not ―the focus‖ of her complaint or her demurrer opposition. We may consider new
9
theories on appeal from the sustaining of a demurrer. (Kruss v. Booth (2010) 185
Cal.App.4th 699, 712, fn. 13, citing Code Civ. Proc., § 472c, subd. (a), italics omitted
[―‗When any court makes an order sustaining a demurrer without leave to amend the
question [as to] whether or not such court abused its discretion in making such an order is
open on appeal even though no request to amend such pleading was made.‘‖].)
A. Sherman Law Claims
Plaintiff argues that a misbranding claim based on Health and Safety Code section
110660 (part of the Sherman Law) cannot be preempted because it is identical to section
343(a) of the FDCA, which is not included under the preemption provision of section
343-1 of the FDCA. Section 343(a) provides that food shall be misbranded if ―its
labeling is false or misleading in any particular . . . .‖ Plaintiff cites Health and Safety
Code section 110660, a similarly broad misbranding statute which defines misbranding as
false or misleading labeling in any particular. Plaintiff claims that the labels on these
products were misleading or false ―because the representation suggested by the
combination of words and statements on the label is that the product is butter, when in
fact it is not.‖
While it is true that the federal and state statutes cited by plaintiff are identical, the
argument is too simplistic. It ignores the specific preemption provisions of section 343-1
which we have cited. Plaintiff cites Chavez v. Blue Sky Natural Bev. Co. (N.D. Cal.
2010) 268 F.R.D. 365, as a case in which the court held that a plaintiff‘s claims under
California statutes based on mislabeling were not preempted by the FDCA. In Chavez,
the key was that the plaintiff‘s claims did not fall within the express preemption
provisions of section 343-1. (Id. at p. 372.) Therefore, its analysis is relevant here only if
none of plaintiff‘s claims come within the express preemption provisions of the FDCA.

9
In light of this rule, we need not determine whether plaintiff‘s brief references to
the Sherman Law in opposition to the demurrer and at the hearing on the demurrer were
sufficient to raise the Sherman Law claim.
14
 Alternatively, plaintiff claims that her Sherman Law claims come within the
misbranding provisions of section 343 of the FDCA are not preempted because they are
identical to the federal law. She relies on the following parallel provisions of the
Sherman Law and the FDCA declaring food misbranded: 1) if a food is offered for sale
under the name of another food (§ 343(b); Health & Saf. Code, § 110685); 2) required
information is not conspicuously placed on a label (§ 343(f); Health & Saf. Code,
§ 110705); and 3) a food is labeled so it purports to be a food for which a definition and
standard of identity has been established, unless it conforms to the definition and standard
and the name of that food is on the label (§ 343(g); Health & Saf. Code, § 110710).
State laws identical to these provisions of the FDCA are exempted from
preemption under section 343-1. Therefore, plaintiff contends, since the Sherman Law
provisions upon which she relies are identical to provisions of the FDCA, they are not
preempted under the rationale of the court in Farm Raised Salmon Cases, supra,
42 Cal.4th 1077. We agree with plaintiff that her Sherman Law claims are identical to
provisions of the FDCA and are not preempted under the reasoning of the court in Farm
Raised Salmon Cases. As the Supreme Court recognized, the Sherman Law expressly
incorporates the requirements of the FDCA. (Health & Saf. Code, § 110660.)
B. MMPA
In her reply brief, plaintiff claims her MMPA claims are not preempted, ―because
the broad federal definition of ‗margarine‘ is substantially identical to the state definition
of ‗spread,‘ and both state and federal law have the identical prominent labeling and
misbranding requirements for this kind of butter substitute.‖ (Italics added.) Although
plaintiff continues to disclaim any argument that these products should be labeled as
margarine, she inconsistently argues that the MMPA claim is not preempted because the
federal requirements for labeling margarine in Title 21 United States Code section
347(b)(3) and in the accompanying regulation, 21 Code of Federal Regulations part
166.40(c) are identical to the MMPA requirement for labeling ―spread‖ (Food & Agr.
Code, § 39411, subd. (a)). FDCA section 347(b)(3) requires that margarine be labeled
with ―(A) the word ‗oleomargarine‘ or ‗margarine‘ in type or lettering at least as large as
15
any other type or lettering on such label, and (B) a full and accurate statement of all the
ingredients contained in such oleomargarine or margarine . . . .‖ The regulation sets out
requirements for the height of each letter, the area of a closely fitting rectangle drawn
around the word ―margarine,‖ and the prominence and boldness of the letters, such as the
breadth of lines forming the letters. (21 C.F.R. §166.40(c)(3).)
In contrast, Food and Agricultural Code section 39411 of the MMPA requires the
words ―margarine‖ to be in type at least as large as any other type or lettering on the label
in ―a color in strong contrast to the color of the container.‖ (Food & Agr. Code, § 39411,
subd. (a).) It also requires the label to include the name and address of the manufacturer
or distributor, the net weight, and all ingredients. (Food & Agr. Code, § 39411,
subds. (b)-(d).) These provisions are not identical, despite plaintiff‘s efforts to
characterize them as such. Nothing in the preemption provision of the FDCA, or in the
rationale of the Supreme Court in Farm Raised Salmon Cases, extends the exemption
from preemption to state laws which are ―substantially identical‖ rather than identical as
plaintiff asserts. We conclude that plaintiff‘s MMPA claims are preempted under section
343-1 of the FDCA. In light of our conclusion that the MMPA claims are expressly
preempted, we need not discuss defendants‘ alternative implied preemption argument.
IV
Defendants argue that spreadable butter with oil products are nonstandardized
products under the FDCA and must be labeled in accordance with their common and
usual name under the implementing regulations. They contend there is no basis for the
three consumer causes of action alleged by plaintiff because the products were not
mislabeled or misbranded. The basic rule under the regulations is that ―[t]he common or
usual name of a food, which may be a coined term, shall accurately identify or describe,
in as simple and direct terms as possible, the basic nature of the food or its characterizing
properties or ingredients.‖ (21 C.F.R. § 102.5(a).) Subdivision (c) of this regulation
provides that ―[t]he common or usual name of a food shall include a statement of the
presence or absence of any characterizing ingredient(s) or component(s) . . . when the
presence or absence of such ingredient(s) or component(s) in the food has a material
16
bearing on price or consumer acceptance or when the labeling or the appearance of the
food may otherwise create an erroneous impression that such ingredient(s) or
component(s) is present when it is not, and consumers may otherwise be mislead about
the presence or absence of the ingredient(s) or component(s) in the food.‖ (21 C.F.R.
§ 102.5(c).) Defendants argue the labels here comply with these requirements because
they clearly state that the product is spreadable butter containing both butter and an
additional oil, either canola oil, or olive oil in combination with canola oil.
Plaintiff‘s response was to change her theory of the case yet again. Plaintiff now
disclaims any argument that the word ―butter‖ cannot appear on the labels of the
products. Instead, she contends her ―claim is rooted in improper prominence: That the
over-prominence of the word ‗butter‘ on this label for this non-standardized butter
product is misleading, because it leads consumers to believe that this product is actually
standard butter, which Challenge concedes it is not. In other words, because the words
‗CHALLENGE BUTTER‘ AND ‗SPREADABLE BUTTER‘ are so much larger and
more conspicuous than the other identifiers, ‗With Canola Oil‘ and ‗Spread,‘ it confuses
and misleads the consumer into thinking this is standard butter.‖
Raising a new theory in a reply brief is improper and unfair to defendants. We
may decline to consider an argument raised for the first time in a reply brief if no good
reason is demonstrated for the delay in raising the point. (Proctor v. Vishay
Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273–1274.) Even if we were to
address plaintiff‘s new theory, we would reach the same result because we conclude that
plaintiff has not, and as a matter of law cannot, allege that a reasonable consumer would
have been mislead by the labels here.
In Yumul v. Smart Balance, Inc. (C.D. Cal. 2010) 733 F.Supp.2d 1117 (Yumul),
plaintiff brought a putative class action alleging purchase of Nucoa margarine,
manufactured by Smart Balance, which is labeled ―cholesterol free‖ although it allegedly
contained harmful trans fat. She alleged that the label was misleading on this ground.
The complaint alleged causes of action for violations of the California Unfair
Competition Law (Bus. & Prof. Code, § 17200 et seq.), False Advertising Law (Bus. &
17
Prof. Code, § 17500 et seq.), and Consumer Legal Remedies Act (Civ. Code, § 1750 et
seq.). (Yumul, at p. 1120.) The court considered whether the complaint should be
dismissed with prejudice because the packaging was not misleading. Although California
―courts have held that reasonable reliance is not an element of the claims under [the three
statutory schemes alleged],‖ a plaintiff must establish that consumers were likely to be
deceived by the product. (Id. at p. 1125; In re Vioxx Class Cases (2009) 180 Cal.App.4th
116, 130 [to state a claim for deceptive advertising under the Consumer Legal Remedies
Act, a plaintiff ―need only establish that members of the public were likely to be deceived
by the advertising.‖]; Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th
663, 682 [to establish a false advertising claim, ―a plaintiff need only show that members
of the public are likely to be deceived‖ under a ―‗reasonable consumer‘ standard‖].)
The Yumul court observed that under California law, in appropriate circumstances,
reasonableness can be decided as a question of law, but ―usually will be a question of fact
not appropriate for decision on [a motion to dismiss]. [Citations.]‖ (Yumul, supra,
733 F.Supp.2d at pp. 1125–1126.) This principle was recognized in Day v. AT & T Corp.
(1998) 63 Cal.App.4th 325, 333, in which the court acknowledged that in some
circumstances, a court may be able to ―say as a matter of law that contrary to the
complaint‘s allegations, members of the public were not likely to be deceived or misled
by . . . packaging materials.‖ In Freeman v. Time, Inc. (9th Cir. 1995) 68 F.3d 285, the
district court had dismissed a cause of action under California Business and Professions
Code section 17200 for failure to state a claim based on two mailers for a promotion
announcing a ―‗Million Dollar Dream Sweepstakes.‘‖ (Id. at p. 287.) The mailers were
couched in language suggesting that plaintiff had won the sweepstakes, but only if he
returned the winning prize number. (Ibid.) Based on an examination of the mailers, the
Ninth Circuit determined that no reasonable person could believe they had won the
sweepstakes in light of the qualifying language included in the mailer. (Id. at pp. 289–
290.) The court concluded that the plaintiff failed to allege a violation of Business and
Professions Code section 17200 on this basis and affirmed dismissal of such claims. (Id.
at p. 290.)
18
 Our case is similar. The labels on the products here clearly informed any
reasonable consumer that the products contain both butter and canola or olive oil. This
was plain on both the top and side panels of the tubs in which the products are sold. No
reasonable person could purchase these products believing that they had purchased a
product containing only butter. The trial court did not abuse its discretion in denying
leave to amend.

DISPOSITION
The order of dismissal is affirmed. Defendants are to have their costs on appeal.
CERTIFIED FOR PUBLICATON

EPSTEIN, P. J.
We concur:

WILLHITE, J.

SUZUKAWA, J.

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APPENDIX A

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APPENDIX B

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APPENDIX C

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APPENDIX D

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APPENDIX E

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APPENDIX F
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