FILED
NOT FOR PUBLICATION
FEB 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEL REAL, LLC, a California limited No. 13-16893
liability company,
D.C. No. 1:12-cv-01669-LJO-GSA
Plaintiff - Appellee,
v. MEMORANDUM*
KAMALA D. HARRIS, Attorney General,
in her official capacity as California
Attorney General,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted February 8, 2016
San Francisco, California
Before: HAWKINS and MURGUIA, Circuit Judges, and BREYER,** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Charles R. Breyer, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
California Attorney General Kamala Harris appeals the permanent injunction
barring enforcement of California’s statutory prohibition against nonfunctional slack
fill (i.e., empty space between a product and its packaging that serves none of a list
of specified purposes) against Plaintiff Del Real, LLC, a producer of Mexican heat-
and-serve meat and poultry products. We agree with the district court that, as applied
to meat and poultry products, California’s nonfunctional slack fill provisions, Cal.
Bus. & Prof. Code §§ 12606(b), 12606.2(c), are expressly preempted by the Federal
Meat Inspection Act (“FMIA”) and the Poultry Products Inspection Act (“PPIA”)
because they are “in addition to, or different than,” 21 U.S.C. §§ 467e, 678, the federal
statutes’ general prohibitions against containers “filled as to be misleading,” id.
§§ 453(h)(4), 458(a)(1)-(2), 601(n)(4), 610(c)-(d).
Even if, as Harris argues, the California provisions prohibit only a subset of
conduct already prohibited by the FMIA or PPIA, allowing those provisions to be
applied to meat and poultry products is impermissible for two reasons. First, we have
previously interpreted the legislative history of the FMIA and PPIA as “clearly
show[ing] the intent of Congress to create a uniform national labeling standard.” Rath
Packing Co. v. Becker, 530 F.2d 1295, 1313 (9th Cir. 1975); see also Nat’l Broiler
Council v. Voss, 44 F.3d 740, 744 (9th Cir. 1994). That same concern about
uniformity applies to the packaging standards in this case and counsels against
2
allowing the states to develop variant standards. Second, by giving the Secretary of
Agriculture the option to promulgate container fill standards, but not mandating such
regulations, 21 U.S.C. §§ 457(b)(2), 607(c)(2), Congress intended to allow meat and
poultry packaging to be subject to less specific regulation than other types of product
packaging. When the FMIA and PPIA’s express preemption clauses are read in light
of Congress’s concern for uniformity and a lesser level of regulation, it is unlikely that
Congress intended for the states to be allowed to develop and apply a more specific
standard for slack fill when the Secretary has not yet done so.
Nothing in this disposition should be read to prevent California from exercising
its concurrent authority under both the FMIA and PPIA to address misleading
packaging of meat and poultry products.
AFFIRMED.
3