A class action against various retail grocers alleged that the undisclosed addition of color to salmon misled consumers about its origin, quality, freshness, and flavor. Reversing the lower courts' dismissal of plaintiffs' claims, the California Supreme Court found that the allegations were not insufficient as a matter of law, and could proceed.
Without the coloring, farm-raised salmon would have a grayish tint, but the pinkish hue added to the fish makes it resemble wild salmon, which consumers prefer. Plaintiffs sued under California's Unfair Competition Law and Consumer Legal Remedies Act.
Defendants included Albertson's, Safeway, Kroger, Trader Joe's, Whole Foods, Costco, and others. They responded that the claims were preempted by federal law. Federal regulations permit the use of the color additives, but require disclosure of their use to consumers. While the trial and appellate courts agreed with defendants that the state law claims were preempted by the federal Food, Drug, and Cosmetic Act ("FDCA"), the California Supreme Court disagreed, finding that plaintiffs did not seek to enforce violations of the FDCA, but to enforce state disclosure requirements that were identical to the FDCA's requirements.
A more detailed discussion of the case is available at the Class Action Defense Blog, here. The case is
Farm Raised Salmon Cases, ___ Cal.4th ___, 72 Cal.Rptr.3d 112, 116 (Cal. 2008) (slip op .pdf).
For retailers, the case serves as a reminder of the importance of complying with disclosure and labeling requirements, as potential liability for failure to comply may result in liability that substantially exceeds the potential penalties specified in the federal regulatory scheme.