                                                                          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                           NOT FOR PUBLICATION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.




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