Farm Raised Salmon Cases
Filed February 11, 2008
Cite as 2008 SOS 995
CALIFORNIA SUPREME COURT

Decision on Demurrer Reversed on Review and Remanded for Further Proceedings

Plaintiffs filed a class and representative suit against several grocery stores for selling artificially colored farmed salmon without disclosing to their customers the use of color additives.

Plaintiffs made the following allegations:

• The flesh of farm-raised salmon appears grayish without the chemical additives.


• Concerns have been raised about the potential health risks of consuming the artificial coloring agents “astaxanthin” and “canthaxanthin” to resemble that of a wild salmon.


• Parallel federal and state laws require food labeling to indicate that farmed salmon is artificially colored which defendants failed to comply with.


• Non disclosure of the use of artificial coloring had caused consumers to believe that farmed salmon is wild salmon.

Defendants jointly filed a demurrer based on the following grounds:

• Plaintiffs preempt state law claims;


• The action should be dismissed under the primary jurisdiction doctrine; and


• Plaintiffs failed to assert affirmative representation required to state a cause of action under several Consumers Legal Remedies Act provisions. Defendants also moved to strike portions of the complaint.

The trial court upheld the demurrer as to each count based on the following grounds:

• Section 337(a) preempts plaintiffs’ state law claims;


• The dispute should be referred to the Food and Drug Administration or the Department of Homeland Security under the primary jurisdiction doctrine;


• Plaintiffs failed to state a claim for violation of the CLRA because they failed to allege the necessary affirmative representation.

Due to such pronouncements, Plaintiffs appealed the case. On appeal, the Court of Appeal affirmed the trial court’s judgment of preemption. Hence, Plaintiffs filed a petition for review.

The California Supreme Court granted plaintiff’s petition for review ruling that:

• Section 343-1 of the FCDA allows states to adopt identical requirements. The Congress in Sec. 343-1 of FDCA specifically allows states to establish their own disclosure requirements so long as they are similar to those contained in Sec. 343(k), and Sec. 337(a) of the Act; and


• Section 337 does not impliedly preempt Plaintiffs’ claims. The statute, by its very terms, only refers to efforts to enforce federal law. It does not limit, prohibit, or affect private claims flowing on state laws.

Wherefore, California Supreme Court reversed the judgment of the Court of Appeal and remanded the same for further proceedings.