Kelley Drye Wins Dismissal of False Advertising Lawsuit Against Challenge Dairy and KrogerJudge Dismisses Case with Prejudice on Federal Preemption Grounds

On May 15, 2012, the Honorable Barbara M. Scheper, Los Angeles Superior Court, dismissed the class action lawsuit of Mary L. Simpson against defendants Challenge Dairy Products, Inc. and Kroger Corporation, which were represented by Kelley Drye & Warren LLP.

In the lawsuit, filed December 21, 2011, the plaintiff alleged that the labeling of certain of Challenge’s dairy products were false and misleading in violation of the California Unfair Competition statutes, including Business and Profession Code § 17200, as well as the Consumer Legal Remedies Act.  The claims related to Challenge Spreadable Butter with Canola Oil and Challenge Spreadable Butter with Canola and Olive Oil.

Oh behalf of Challenge and Kroger, Kelley Drye successfully asserted that the relevant provisions of California law were preempted by federal requirements under the Federal Food, Drug & Cosmetic Act.  The judge sustained the demurrer, without leave to amend, on the grounds that the plaintiff’s claims were both expressly and impliedly preempted by federal law.

From offices in Los Angeles, CA, and Washington, D.C., associate Donnelly L. McDowell represented the defendants in this case.