                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 29 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

GREGORY BROD, individually and on                No. 13-15584
behalf of all others similarly situated,
                                                 D.C. No. 3:12-cv-01322-EMC
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

SIOUX HONEY ASSOCIATION
COOPERATIVE, an Iowa entity,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward M. Chen, District Judge, Presiding

                        Argued and Submitted June 9, 2015
                            San Francisco, California

Before:       SCHROEDER, D.W. NELSON, and IKUTA, Circuit Judges.

      Appellant Gregory Brod appeals the district court’s dismissal of his claims

as preempted by federal law. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err in finding federal law preempts California law

to the extent California law prohibits de-pollinated honey from being labeled and

sold as “honey.” Brod claims Sioux Honey Association Cooperative (“Sioux

Honey”) violated California law by selling Sue Bee Clover Honey, which is de-

pollinated, as “honey.” See Cal. Food & Agric. Code §§ 29671, 29413(e) (West

2015). The Federal Food, Drug, and Cosmetic Act, as amended by the Nutrition

Labeling and Education Act, preempts state food labeling laws that impose

requirements that are “not identical” to federal labeling regulations. 21 U.S.C.

§ 343-1(a)(3). Because de-pollinated honey is not “a food for which a definition

and standard of identity has been prescribed by regulations as provided by section

341" of title 21 of the United States Code, see 21 U.S.C. § 343(g), under federal

law, de-pollinated honey must be labeled with the “common or usual name of the

food, if any there be . . . .” 21 U.S.C. § 343(i).

      The district court decided correctly that the “common or usual name” of de-

pollinated honey is “honey.” The district court considered properly dictionary

definitions, state standards of identity, and voluntary United States Department of

Agriculture regulations. Any error in declining to take judicial notice of a citizen

petition requesting the Federal Drug Administration (“FDA”) adopt the Codex

Alimentarius Commission’s standard of identity for honey was harmless. See Blas


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v. Talabera, 318 F.2d 617, 619 (9th Cir. 1963). In addition, we grant Sioux

Honey’s motion for judicial notice of an FDA letter to Representative Marcy

Kaptur, which explains the FDA’s position on de-pollinated honey, the denial of

the citizen petition, and bolsters the district court’s analysis. Brod, however, has

pointed to no source that suggests the “common or usual name” of de-pollinated

honey is something other than “honey.”

      Thus, federal law requires de-pollinated honey be labeled and sold as

“honey,” while California law prohibits de-pollinated honey from being labeled

and sold as “honey.” Given this conflict, the district court did not err in finding

that California’s law is preempted. See Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363, 372–73 (2000). In addition, as clarified at oral argument, there are

no other issues before us. Brod's Rule 28(j) letter filed after argument on June 10,

2015, does not persuade us that any other issues were raised sufficiently to the

district court or briefed on appeal.

      AFFIRMED.




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