        [Cite as Arnold v. Kroger Co., 2016-Ohio-190.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



CHRISTOPHER ARNOLD,                              :       APPEAL NO. C-150291
                                                         TRIAL NO. A-1404763
  and                                            :
                                                         O P I N I O N.
KRISTINA ARNOLD,                                 :

    Plaintiffs-Appellants,                       :

  vs.                                            :

THE KROGER CO.,                                  :

    Defendant-Appellee.                          :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 22, 2016




Statman, Harris & Eyrich, LLC, Jeffrey P. Harris, Sylvie Derrien and Colleen M.
Hegge for Plaintiffs-Appellants,

Marshall Dennehy Warner and Ray C. Freudiger, and Venable, LLP, Roger A.
Colaizzi and Edward P. Boyle, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Judge.

       {¶1}     Plaintiffs-appellants Christopher and Kristina Arnold appeal the

judgment of the Hamilton County Court of Common Pleas dismissing their class-action

claims against defendant-appellee The Kroger Company (“Kroger”) for fraudulent

inducement, negligent misrepresentation, breach of express warranties, and violation of

the Ohio Deceptive Trade Practices Act and the Ohio Consumer Sales Practices Act. The

court dismissed their claims as preempted by the federal Poultry Products Inspection

Act (“PPIA”). We affirm.

                       The Arnolds’ Claims against Kroger

       {¶2}     The Arnolds purchased chicken labeled under Kroger’s Simple Truth

brand. These labels included statements that the chicken was “raised in a humane

environment” and/or “humanely raised.” The Arnolds assert these humane-treatment

claims are false and misleading because Kroger’s chickens are raised no differently than

any other chicken mass produced by its supplier, Perdue. They contend that Kroger had

injured Ohio consumers by charging a premium for the Simple Truth brand chicken

based on these false and misleading claims.

       {¶3}     As a result, the Arnolds filed a class-action complaint on behalf of

themselves and all other similarly situated purchasers of the Simple Truth brand

chicken.

                                      Preemption

       {¶4}     In a single assignment of error, the Arnolds argue that the trial court

improperly dismissed their claims as preempted by the PPIA. The Arnolds assert that

the trial court erred in dismissing their claims for a variety of reasons. The crux of their

arguments is twofold: the labeling requirements under the PPIA (1) only give the United




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                      OHIO FIRST DISTRICT COURT OF APPEALS



States Department of Agriculture (“USDA”) and Food Safety and Inspection Service

(“FSIS”) the authority to regulate labeling related to the safety of poultry products for

human consumption, not living, on-farm chickens and (2) do not review the meaning of

claims regarding the humane treatment of animals.

       {¶5}     A judgment granting a Civ.R. 12(B)(6) motion to dismiss is subject to de

novo review. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814

N.E.2d 44, ¶ 5. In reviewing whether a motion to dismiss is proper, we accept all factual

allegations in the complaint as true. Id.

       {¶6}     The USDA is empowered by Congress to regulate the quality of meat and

poultry products and has the authority to prohibit the misbranding of poultry products.

21 U.S.C. 457(b). The PPIA prohibits poultry labeling that is “false or misleading in any

particular.” 21 U.S.C. 458(a)(2) and 453(h)(1). Further, the FSIS is authorized to bar

the sale of poultry products with “any marketing or labeling” that it determines “is false

or misleading in any particular.” 21 U.S.C. 457(d).

       {¶7}     Under the Supremacy Clause of the United States Constitution, Congress

has the power to preempt state law. Ohio State Bldg. & Constr. Trades Council v.

Cuyahoga Cty. Bd. of Commrs., 98 Ohio St.3d 214, 2002-Ohio-7213, 781 N.E.2d 951, ¶

46.   Federal preemption of state law can occur in three circumstances: (1) when

Congress expressly preempts state law; (2) where there is an actual conflict between

federal and state law, or (3) “when the scope of a [federal] statute indicates that

Congress intended federal law to occupy a field exclusively.” Kurns v. R.R. Friction

Prods. Corp., __ U.S. __, 132 S.Ct. 1261, 1265-1266, 182 L.Ed.2d 116 (2012).

       {¶8}     The trial court held that the PPIA expressly preempts the field of poultry

labeling.   Indeed, the Sixth Circuit has held that the terms of the Federal Meat

Inspection Act (“FMIA”) were not simply minimum standards, but instead, “the Federal



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Act fixes the sole standards.” Armour & Co. v. Ball, 468 F.2d 76, 84 (6th Cir.1972)

(holding that the FMIA preempted a Michigan law requiring higher ingredient

requirements for labeling of sausages). However, “the existence of a private right of

action under federal law is antecedent of complete preemption.” Rogers v. Tyson

Foods, Inc., 308 F.3d 785, 788 (7th Cir.2002); e.g., Strong v. Telectronics Pacing Sys.,

Inc., 78 F.3d 256, 260 (6th Cir.1996). Since the PPIA does not provide a private right of

action, it does not command field preemption. Rogers at 790.

       {¶9}    The PPIA expressly preempts states from imposing:

       [m]arketing, labeling, packaging, or ingredient requirements (or storage

       or handling requirements * * * [that] unduly interfere with the free flow

       of poultry products in commerce) in addition to, or different than, those

       made under * * * [the PPIA] with respect to articles prepared at any

       official establishment in accordance with the requirements under this

       chapter * * *.


21 U.S.C. 467(e). This clause sweeps broadly. See Natl. Meat Assn. v. Harris, __

U.S.__, 132 S.Ct. 965, 970, 181 L.Ed.2d 950 (2012) (finding that the nearly identical

preemption provision set forth in the FMIA sweeps broadly).

       {¶10}   On its face, the preemption clause prohibits states from mandating any

additional or different labeling requirements. The question is whether it preempts state-

law damages actions.       Such common-law damages actions are “premised on the

existence of a legal duty.” Cipollone v. Liggett Group, 505 U.S. 504, 522, 112 S.Ct. 2608,

120 L.Ed.2d 407 (1992). In Cipollone, the court held that since the language of the

Public Health Cigarette Smoking Act of 1969, 15 U.S.C. 1331-1340, prohibited any

“requirement[s] or prohibition[s]” imposed under state law, the act preempted

common-law damages actions. Id. The court explained that, while “the common law


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would not normally require a vendor to use any specific statement on its packages or in

its advertisements, it is the essence of the common law to enforce duties that are either

affirmative requirements or negative prohibitions.”       Id.   Likewise, here, the PPIA

prohibits additional or different marketing, labeling, packaging, or ingredient

requirements that are “imposed by any State or Territory or the District of Columbia.”

21 U.S.C. 467(e). But, while the PPIA preemption clause is effective to preempt claims, it

would not bar all. See Cipollone at 523 (explaining that cigarette act would preempt

some claims, it would not preempt others, such as claims asserting manufacturing

defects). Thus, the question here is whether the legal duty upon which each damages

action is predicated constitutes an additional or different marketing, labeling, packaging,

or ingredient requirement imposed by Ohio. See Cipollone at 523. We find that the

Arnolds’ claims attempt to require additional or different requirements, and thus, are

preempted.

       {¶11}    The Arnolds have not alleged that Kroger violated any federal laws or

regulations, nor do they assert that Kroger failed to comply with the poultry labeling

requirements set forth in the PPIA. Instead, the Arnolds claim that Kroger’s use of the

terms “humanely raised” and “humane environment” on its labels was false and/or

misleading. The Arnolds have conceded, albeit somewhat indirectly, that the FSIS

approved Kroger’s labels. As part of this approval, the FSIS determines whether the

labels are false or misleading. See 21 U.S.C. 457. Therefore, because the preapproval

process includes a determination regarding whether the label is false or misleading, and

the Arnolds’ claims hinge on that very determination, any liability the Arnolds seek to

impose based on their state-law claims would attach additional or different terms to

Kroger’s labeling. See Kuenzig v. Hormel Foods Corp., 505 Fed.Appx. 937, 938-939

(11th Cir.2013).   Thus, their claims are expressly preempted by federal law.          See



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Meaunrit v. ConAgra Foods, Inc., N.D.Cal. No. C 09-02220 CRB, 2010 U.S. Dist. LEXIS

73599, *21 (July 20, 2010).

       {¶12}    Furthermore, the Arnolds argument that their claims are not preempted

because the PPIA’s review of labels is limited to labels “concerning the dead chicken

carcass[es]” with regard to protecting the health and safety of the public, not the living

conditions of on-farm chickens, is unpersuasive. The PPIA charges the FSIS with

inspecting and approving all poultry labeling in order to prevent the sale of poultry

products that are “misbranded.” See 21 U.S.C. 457. Congress declared that the purpose

of the PPIA is to provide for the

       inspection of poultry and poultry products and otherwise regulate the

       processing and distribution of such articles as hereinafter prescribed to

       prevent the movement or sale in interstate or foreign commerce of, or the

       burdening of such commerce by poultry products which are adulterated

       or misbranded.

21 U.S.C. 452. Under the PPIA, “misbranded” means “any poultry product” where “its

labeling is false and misleading in any particular.” 21 U.S.C. 453(h)(iii).    The statute

defines “poultry product” as “any poultry carcass or part thereof.” 21 U.S.C. 453(h)(i).

       {¶13}    The PPIA states that assuring poultry products are “wholesome, not

adulterated, and properly marked, labeled, and packaged” is essential to the public

interest of protecting the health and welfare of consumers, because the distribution of

“unwholesome, adulterated, or misbranded poultry products” is harmful to the public

welfare and markets for quality poultry products, and causes “losses to poultry

producers and processors of poultry and poultry products, as well as injury to

consumers.” 21 U.S.C. 451. Further, the FSIS has determined that humane treatment of

poultry directly implicates its fitness for human consumption because “under the PPIA,



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                     OHIO FIRST DISTRICT COURT OF APPEALS



poultry products are more likely to be adulterated if, among other circumstances, they

are produced from birds that have not been treated humanely,” which may result in

poultry that is “not acceptable for human food.” Treatment of Live Poultry Before

Slaughter, 70 Fed.Reg. 56,624-25 (Sept. 28, 2005).

       {¶14}   The Arnolds rely heavily on Chacanaca v. Quaker Oats Co., 752

F.Supp.2d 1111 (N.D.Cal.2010), for support. There, the trial court held that many of the

plaintiff’s claims were preempted by the Federal Food, Drug and Cosmetic Act

(“FDCA”), but their claims that the use of images and other phrases, including the word

“wholesome,” was deceptive were not preempted. Id. However, the FDCA contains a

savings clause, and its preemption clause is narrow. See id. at 1118; 21 U.S.C. 343-

1(a)(4)-(5).

       {¶15}   We hold that the trial court properly dismissed the Arnolds’ complaint

for failure to state a claim upon which relief could be granted under Civ.R. 12(B)(6), and

we overrule the Arnolds’ sole assignment of error.

                                      Conclusion

       {¶16}   The judgment of the trial court is affirmed.

                                                                     Judgment affirmed.

M OCK and S TAUTBERG , JJ., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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