              Case: 12-11180     Date Filed: 02/01/2013      Page: 1 of 5

                                                                 [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-11180
                             Non-Argument Calendar
                           ________________________

                   D. C. Docket No. 8:11-cv-00838-SCB-TGW

BRAD KUENZIG,
CHRISANNE OLIVER,
on behalf of themselves and all others similarly situated,

                                                                  Plaintiffs-Appellants,

                                       versus

HORMEL FOODS CORP.,
KRAFT FOODS GLOBAL, INC.,

                                                                Defendants-Appellees.




                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                               (February 1, 2013)

Before HULL, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
                Case: 12-11180       Date Filed: 02/01/2013       Page: 2 of 5

       Brad Kuenzig appeals the district court’s orders dismissing with prejudice

his claims against Kraft Foods Global, Inc. (Kraft) and Hormel Foods Corporation

(Hormel). After de novo review, we affirm.

       Kuenzig filed a putative class-action complaint alleging that Kraft misled

consumers into believing its lunch meat products contained fewer fat-calories than

they actually did. Kraft achieved this alleged deception by listing caloric amounts

and fat-free percentages immediately adjacent to one another on the products’

labels. For example, Kuenzig alleged Kraft’s label proclaiming its Oscar Mayer

Honey Ham to be “98% Fat Free ⦁ 50 calories per serving” misled consumers into

believing ninety-eight percent of those fifty calories were fat free, when in

actuality the product contained twenty-two percent fat by calories. 1

       At issue in this case are two district court orders dismissing Kuenzig’s

complaints. In the first order, the district court granted Defendants’ joint motion to

dismiss Kuenzig’s complaint for two independently sufficient reasons: (1) his state

law claims were preempted by federal law, and (2) Kuenzig’s complaint failed to

state a claim under Fed. R. Civ. P. 12(b)(6). First, Kuenzig’s state law labeling

claims were preempted because such claims would impose labeling requirements

       1
         Kuenzig conceded that Hormel does not label caloric amounts near any fat-free
percentages. Rather, Kuenzig alleged that because Hormel knew its products would be placed on
grocery shelves near Kraft’s products, Hormel’s fat-free percentage claims also misled
consumers. Kuenzig also acknowledged that both Kraft and Hormel include a nutrition panel on
the back label of their lunch meat packaging, which discloses the number of calories per serving,
as well as the number of those calories that come from fat.
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“in addition to, or different than” those set forth under federal law. See 21 U.S.C.

§§ 467e, 678. Federal regulations required Defendants to label their percentage

fat-free claims based on the number of fat grams compared to the weight of their

products. Defendants complied with this requirement. Also, federal regulations

relating to the Poultry Products Inspection Act (PPIA), 21 U.S.C. § 451 et seq., and

the Federal Meat Inspection Act (FMIA), 21 U.S.C. § 601 et seq., required Kraft

and Hormel to submit their labels to the Food Safety and Inspection Service (FSIS)

for approval prior to using the labels on their lunch meat products. See 9 C.F.R. §

381.132(a), § 317.4(a). Defendants also complied with this requirement. Because

Kuenzig’s state law claims would impose requirements “in addition to, or different

than” federal law, they were preempted.

      Second, Kuenzig’s labeling allegations failed to state a claim. According to

the district court, Kuenzig’s contentions were “frivolous with respect to Hormel’s

labels, and disingenuous at best with respect to Kraft’s labels.” Because the both

parties’ labels complied with federal nutrition labeling regulations and passed the

FSIS preapproval process, the labels were presumptively lawful and not false or

misleading.

      The district court dismissed all of Kuenzig’s labeling claims with prejudice,

but granted Kuenzig leave to file an amended complaint to assert a Little Federal

Trade Commission Act claim (Little FTC Act) based on non-label advertising.


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Kuenzig accepted that invitation, filing an amended complaint alleging that

Defendants’ advertisements misled consumers regarding the amount of fat-calories

in their lunch meat products.2 Defendants’s advertisements allegedly misled

consumers by including pictures of the lunch meat labels and by identifying the

products by their fat-free percentages.

       In the second order, the district court granted Defendants’ motions to

dismiss Kuenzig’s amended complaint for two reasons: (1) the Defendants did not

violate Florida’s Little FTC Act, because they were protected under the safe harbor

provision of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA); and

(2) Kuenzig again failed to state a claim for relief under Fed. R. Civ. P. 12(b)(6).

First, pursuant to its safe harbor provision, the FDUTPA does not apply to acts

specifically permitted by federal law. See Fla. Stat. § 501.212(1). Defendants’

labels were specifically permitted by federal law. The labels complied with federal

regulations regarding the use of percentage fat-free claims and were approved by

FSIS prior to their commercial use. Accordingly, Kraft and Hormel could not be

liable pursuant to the FDUTPA’s safe harbor provision.

       Second, the district court also concluded Kuenzig failed to state a claim.

Specifically, Kuenzig failed to allege a basis upon which Hormel’s percentage fat-

       2
        Kuenzig’s amended complaint added a second plaintiff and new allegations against
Hormel. The district court granted Hormel’s motion to strike the portions of the amended
complaint relating to Hormel that exceeded the scope of the leave to amend, as well as the newly
added plaintiff. Kuenzig does not challenge these decisions on appeal.
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free claim could be considered unfair or deceptive. Because Kuenzig had not

shown Hormel’s label was unfair or deceptive on its own, the label could not

become unfair or deceptive simply by virtue of being pictured in an advertisement.

Accordingly, the district court dismissed the claims in Kuenzig’s amended

complaint with prejudice.

      In sum, we affirm the dismissal of Kuenzig’s claims against Kraft and

Hormel for the reasons stated in the district court’s thorough and well-reasoned

orders. Kuenzig’s state law labeling claims are preempted by federal law.

Alternatively, Kuenzig’s state law labeling claims were properly dismissed for

failure to state a claim. Finally, Kuenzig’s Little FTC Act claims are barred by the

safe harbor provision of the FDUTPA.

      AFFIRMED.




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