In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3267
C AROLYN T UREK,
Plaintiff-Appellant,
v.
G ENERAL M ILLS, INC. and K ELLOGG C O .,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-07038—Robert W. Gettleman, Judge.
A RGUED S EPTEMBER 9, 2011—D ECIDED O CTOBER 17, 2011
Before C UDAHY, P OSNER, and W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. The district court dismissed this
diversity class action suit (which seeks damages and
other relief for alleged violations of the Illinois Con-
sumer Fraud and Deceptive Business Practices Act, 815
ILCS 505, and the Illinois Uniform Deceptive Trade
Practices Act, 815 ILCS 510) for want of federal subject-
matter jurisdiction, on the ground that the claims are
barred by federal law. There are two initial puzzles. The
2 No. 10-3267
first is why, although the plaintiff’s complaint clearly
and in great detail describes the suit as a class action
suit, the district judge did not mention that it was a
class action suit or consider whether it should be
certified as a class action; nor do the captions in this
court indicate that it is a class action. Apparently the
plaintiff never even sought class certification, and in
those circumstances the dismissal of the plaintiff’s claim
terminates the suit. Greisz v. Household Bank (Illinois), N.A.,
176 F.3d 1012, 1015 (7th Cir. 1999); see also Board of
School Commissioners of City of Indianapolis v. Jacobs, 420
U.S. 128, 129-30 (1975) (per curiam). Only after a class
is certified can the suit survive dismissal of the named
plaintiff’s claim, by substitution of another member of
the class as named plaintiff.
The second puzzle is the dismissal of the suit for want
of federal jurisdiction. The district judge ruled that the
plaintiff’s claims were preempted (barred) by federal
law, but the fact that a defendant has a good defense to
a state law claim does not mean that the complaint does
not invoke federal jurisdiction. There is an exception to
this principle, called “complete preemption”—“a misno-
mer, having nothing to do with preemption and every-
thing to do with federal occupation of a field,” Lehmann
v. Brown, 230 F.3d 916, 919 (7th Cir. 2000)—for cases in
which federal law so pervades a field that any claim
purportedly based on state law would actually be based
on federal law, state law having been totally displaced
by federal. Beneficial National Bank v. Anderson, 539 U.S. 1,
8 (2003). Were this a case of complete preemption the
plaintiff’s purported state claim would actually be a
No. 10-3267 3
federal claim. The claim would invoke federal jurisdic-
tion but would be quickly dismissed on the merits
because there is no basis for the claim in federal law.
Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 561
(1968); Fayard v. Northeast Vehicle Services, LLC, 533 F.3d
42, 45-46 (1st Cir. 2008).
The district judge did not allude to complete preemp-
tion, and this is not a case within its scope, because
the preempting statute—the Nutrition Labeling and
Education Act of 1990, Pub. L. No. 101-535, 104 Stat.
2353—disclaims federal occupation of the field. Section
6(c)(1), 104 Stat. 2364, says the Act “shall not be con-
strued to preempt any provision of State law, unless
such provision is expressly preempted under section
403A of the Federal Food, Drug, and Cosmetic Act.” So
the plaintiff’s state law claim is a genuine state law
claim, and one within the diversity jurisdiction. If it
is preempted, dismissal is the proper outcome—
but dismissal on the merits, with prejudice like other
merits judgments, not dismissal for want of federal
jurisdiction.
To the merits, then. The plaintiff’s targets are “chewy
bars” made and sold by the defendants. (These should
not be confused with the product sold by Quaker Oats
under its trademark “Quaker Chewy Bars,” which is not
at issue in this case, though there is a similar case in-
volving that product: Chacanaca v. Quaker Oats Co., 752
F. Supp. 2d 1111 (N.D. Cal. 2010).) Typical is Kellogg’s
chocolate-chip bar “Fiber Plus.” A side panel of the
Fiber Plus box contains a table captioned “Nutrition
4 No. 10-3267
Facts” (the table is required on packages of all packaged
food items, 21 U.S.C. § 343(q)(1); 21 C.F.R. § 101.9) which
states that a serving contains 9 grams of “Dietary Fiber”
and that this is 35 percent of one’s “Daily Value” of
dietary fiber. On the front of the box a circle encloses
the words “35% of your daily fiber.”
The complaint alleges that the principal fiber, by
weight, in Fiber Plus bars (as in the other chewy bars
made by the defendants) is inulin extracted from chicory
root. The complaint describes inulin so extracted (as
distinct from inulin found, and consumed without its
having been processed, in bananas, onions, leeks, Jerusa-
lem artichokes, and other vegetables) as a “non-natural”
fiber. This may seem an odd way to describe inulin
derived from chicory root, a plant; but what is meant is
that this inulin is processed, whereas if you eat a
banana you are getting inulin in an unprocessed form.
Nowhere does the Fiber Plus box state that the
principal fiber is inulin from chicory root, though the
label does list “chicory root extract” first, and “inulin
from chicory root” a few items later, in the list of the
product’s ingredients.
The complaint alleges that inulin provides fewer of the
benefits of consuming fiber (these are mainly pro-
moting the regularity of bowel movements, lowering
cholesterol, and making it easier to avoid gaining
weight), causes stomach problems in some people, and
is harmful to women who are pregnant or breast feeding.
Nowhere does the package state that the product
contains a form of fiber that is inferior to “natural” fiber
No. 10-3267 5
and actually harmful to some consumers. (Although the
procedural posture of the case requires us to assume the
truth of the plaintiff’s allegations, we of course do not
vouch for their truth, which the defendants vigorously
contest.)
The complaint thus states a garden-variety consumer
protection claim, but one blocked, the district judge
ruled, by federal law. A provision of the Federal Food,
Drug, and Cosmetic Act, 21 U.S.C. § 343-1(a)(5), added
by the Nutrition Labeling and Education Act of 1990,
forbids states (or their political subdivisions, a qualifica-
tion we can ignore) to impose “any requirement re-
specting any claim of the type described in section 343(r)(1)
[of the Food, Drug, and Cosmetic Act] . . . made in the
label or labeling of food that is not identical to the re-
quirement of section 343(r).” The state thus can impose
the identical requirement or requirements, and by doing
so be enabled, because of the narrow scope of the pre-
emption provision in the Nutrition Labeling and Educa-
tion Act, to enforce a violation of the Act as a viola-
tion of state law. See also In re Pepsico, Inc. Bottled Water
Marketing and Sales Practices Litigation, 588 F. Supp. 2d 527,
532 (S.D.N.Y. 2008); “Beverages: Bottled Water,” 60 Fed.
Reg. 57076, 57120 (Final Rule, Nov. 13, 1995). This is
important because the Food, Drug, and Cosmetic Act
does not create a private right of action. Medtronic, Inc. v.
Lohr, 518 U.S. 470, 487 (1996); Kemp v. Medtronic, Inc.,
231 F.3d 216, 236 (6th Cir. 2000).
A state can also ask the Food and Drug Administra-
tion to exempt from the requirement of “identicalness” a
6 No. 10-3267
state (or local) requirement “designed to address a par-
ticular need for information which need is not met by
the requirements” imposed by federal law. 21 U.S.C. § 343-
1(b)(3). But neither Illinois nor any of its political
subdivsions has obtained—or even, as far as we know,
sought—such an exemption.
It is easy to see why Congress would not want to allow
states to impose disclosure requirements of their own on
packaged food products, most of which are sold nation-
wide. Manufacturers might have to print 50 different
labels, driving consumers who buy food products in
more than one state crazy.
The critical question presented by the appeal is there-
fore what requirements the federal law imposes on the
labeling of dietary fiber. Section 343(r)(1)(A) governs
“a claim . . . made in the label or labeling of . . . food which
expressly or by implication characterizes the level of any
nutrient which is of the type required by [section
343](q)(1).” So we go to section 343(q)(1) and find in
subsection (D) a requirement (the only statutory
labeling requirement that is pertinent to this case) that
the “label or labeling” of food products intended for
human consumption state “the amount of . . . dietary
fiber . . . contained in each serving size or other unit
of measure.” Other requirements for labeling claims
relating to dietary fiber are set forth in implementing
regulations of the Food and Drug Administration the
validity of which is not challenged. The form and content
of such claims are set forth in 21 C.F.R. § 101.54(d).
The labeling of Fiber Plus and the other products chal-
No. 10-3267 7
lenged by the plaintiff is compliant with that regulation
and with the other regulations relating to health claims
for dietary fiber. See, e.g., 21 C.F.R. § 101.76. All the
FDA’s requirements relating to labeling that mentions
dietary fiber are incorporated in section 343(r)(1) as
requirements to which any labeling disclosures required
by a state must be identical. Cf. City of New York v. FCC,
486 U.S. 57, 63-64 (1988).
The disclaimers that the plaintiff wants added to the
labeling of the defendants’ inulin-containing chewy bars
are not identical to the labeling requirements imposed on
such products by federal law, and so they are barred. The
information required by federal law does not include
disclosing that the fiber in the product includes inulin
or that a product containing inulin produces fewer
health benefits than a product that contains only “natu-
ral” fiber, or that inulin from chicory root should not
be consumed by pregnant or lactating women. The only
mention of inulin that we have found in a federal reg-
ulation appears in a regulation issued by the Depart-
ment of Agriculture that lists inulin as one of the
“nonorganically produced agricultural products [that]
may be used as ingredients in or on processed products
labeled as ‘organic.’ ” 7 C.F.R. § 205.606(m). The term
“nonorganically produced” indicates that the reference
is to, or at least includes, inulin extracted from chicory
root.
Even if the disclaimers that the plaintiff wants added
would be consistent with the requirements imposed by
the Food, Drug, and Cosmetic Act, consistency is not the
8 No. 10-3267
test; identity is. Maybe such disclaimers would be a
good thing (an issue on which we take no position) and
the FDA should require them, but that is irrelevant to
this appeal.
Although it is merely icing on the cake, we add that
the plaintiff’s suit fails to state a claim under the principal
Illinois law on which she pitches her case. The Illinois
Consumer Fraud and Deceptive Business Practices Act
does not apply to “actions or transactions specifically
authorized by laws administered by any regulatory
body or officer acting under statutory authority of this
State or the United States.” 815 ILCS 505/10b(1). The
representations on the packaging of the defendants’
chewy bars concerning dietary fiber are specifically
authorized by the federal statutes and regulations that
we’ve discussed.
We have not mentioned all the issues presented by
the plaintiff’s appeal because her claims relating to some
of them are frivolous, insufficiently explained in her
briefs to be intelligible, or forfeited because they were
not presented in the district court.
The judgment of the district court is altered to a judg-
ment of dismissal under Fed. R. Civ. P. 12(b)(6) with
prejudice, and so altered is
A FFIRMED.
10-17-11