California cannot enforce the “slack fill” label and packaging requirements of the state’s Business and Professional Code because the state law is preempted by the federal Meat Inspection Act and the federal Poultry Products Inspection Act. The U.S. Court of Appeals for the 9th Circuit on Feb. 12 upheld the Aug. 19, 2013, decision by U.S. packing_406X250District Court Judge Lawrence J. O’Neill that “permanently enjoined and restrained” California officials from enforcing the slack fill requirements. The decision of the U.S. District Court for Eastern California was appealed to the 9th Circuit by California Attorney General Kamala D. Harris, who has not commented on losing the case. Del Real LLC, a California company that prepares, packages, and sells fully cooked meat and poultry sold and distributed throughout the state, emerged as the winner. Del Real’s legal team was led by Steve Wells of the Minneapolis office of Dorsey & Whitney LLP. “When It comes to regulating labeling or packaging or other matters within the scope of Federal laws governing meat and poultry, there is just one set of rules – the federal rules ,” Well said. “That’s what Congress intended and that’s what the courts will enforce.” “Slack fill” is the empty space between meat and poultry products and their packaging. After state enforcement actions, Del Real challenged the California Fair Packaging and Labeling Act (CFPLA) on grounds it is preempted for meat and poultry products regulated by the Federal Meat Inspection Act (FMIA) and the federal Poultry Products Inspection Act (PPIA). The California Attorney General’s office argued the state law was consistent with the federal regulations. The Secretary of Agriculture has the authority to issue rules on “standard of fill,” but has opted not to make an issue of it. USDA regulations do prohibit meat from being sold in packages “fill so as to be misleading.” Federal poultry regulations prohibit the sale of any poultry product in “any container that is so made, formed or filled as to be misleading.” “The FMIA and PPIA regulations do not otherwise address any subjects that could arguably be equivalent to the concept to slack fill,” the upheld district court ruling says. The upheld ruling says the case involves an “express preemption” by the federal government of state law because a “clear and manifest purpose of Congress” exists. Judge O’Neill’s says “marking, labeling, packaging or ingredient requirements “in addition to or different than those made under (both FMIA and PPIA) …may not be imposed by any State or Territory or the District of Columbia..” While the 9th Circuit ruling was made as an unpublished decision, meaning it might not be used as easily for precedent, O’ Neill’s decision points to several other preemption decisions that point to the limits state action. These include: National Meat Association v. Harris (2012), challenging state law “dictating what slaughterhouse must to with non ambulatory pigs. California barred from imposing additional or different requirements than USDA’s. In National Broiler, California sought to prevent wholesalers from using the word “fresh” on labels for poultry held in cold storage as permitted by federal regulations. Rejected by 9th Circuit. “Although federal regulations did not define ‘fresh’, they did define ‘frozen,’ and the USDA reasonably interpreted its own regulations in a policy document to permit any poultry not properly labels as “frozen’ to be labeled as ‘fresh.’” And, in Jones v. Rath Packing Co., upheld USDA’s treatment of moisture loss in weights and measures. (To sign up for a free subscription to Food Safety News, click here.)