Gregory Brod, individually and on behalf of all others similarly situated v. Sioux Honey Association Cooperative, an Iowa entity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY BROD, individually and on
behalf of all others similarly situated,
Plaintiff - Appellant,
v.
SIOUX HONEY ASSOCIATION
COOPERATIVE, an Iowa entity,
Defendant - Appellee.
No. 13-15584
D.C. No. 3:12-cv-01322-EMC
MEMORANDUM*
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.
FILED
JUN 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 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
2

-- 2 of 3 --

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.
3

-- 3 of 3 --