In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3267

CAROLYN TUREK,

Plaintiff-Appellant,

v.

GENERAL MILLS, INC. and KELLOGG CO.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:09-cv-07038—Robert W. Gettleman, Judge.

ARGUED SEPTEMBER 9, 2011—DECIDED OCTOBER 17, 2011

Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. The district court dismissed this

diversity class action suit (which seeks damages and

other relief for alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815

ILCS 505, and the Illinois Uniform Deceptive Trade

Practices Act, 815 ILCS 510) for want of federal subjectmatter jurisdiction, on the ground that the claims are

barred by federal law. There are two initial puzzles. The
2 No. 10-3267

first is why, although the plaintiff’s complaint clearly

and in great detail describes the suit as a class action

suit, the district judge did not mention that it was a

class action suit or consider whether it should be

certified as a class action; nor do the captions in this

court indicate that it is a class action. Apparently the

plaintiff never even sought class certification, and in

those circumstances the dismissal of the plaintiff’s claim

terminates the suit. Greisz v. Household Bank (Illinois), N.A.,

176 F.3d 1012, 1015 (7th Cir. 1999); see also Board of

School Commissioners of City of Indianapolis v. Jacobs, 420

U.S. 128, 129-30 (1975) (per curiam). Only after a class

is certified can the suit survive dismissal of the named

plaintiff’s claim, by substitution of another member of

the class as named plaintiff.

The second puzzle is the dismissal of the suit for want

of federal jurisdiction. The district judge ruled that the

plaintiff’s claims were preempted (barred) by federal

law, but the fact that a defendant has a good defense to

a state law claim does not mean that the complaint does

not invoke federal jurisdiction. There is an exception to

this principle, called “complete preemption”—“a misnomer, having nothing to do with preemption and everything to do with federal occupation of a field,” Lehmann

v. Brown, 230 F.3d 916, 919 (7th Cir. 2000)—for cases in

which federal law so pervades a field that any claim

purportedly based on state law would actually be based

on federal law, state law having been totally displaced

by federal. Beneficial National Bank v. Anderson, 539 U.S. 1,

8 (2003). Were this a case of complete preemption the

plaintiff’s purported state claim would actually be a
No. 10-3267 3

federal claim. The claim would invoke federal jurisdiction but would be quickly dismissed on the merits

because there is no basis for the claim in federal law.

Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 561

(1968); Fayard v. Northeast Vehicle Services, LLC, 533 F.3d

42, 45-46 (1st Cir. 2008).

The district judge did not allude to complete preemption, and this is not a case within its scope, because

the preempting statute—the Nutrition Labeling and

Education Act of 1990, Pub. L. No. 101-535, 104 Stat.

2353—disclaims federal occupation of the field. Section

6(c)(1), 104 Stat. 2364, says the Act “shall not be construed to preempt any provision of State law, unless

such provision is expressly preempted under section

403A of the Federal Food, Drug, and Cosmetic Act.” So

the plaintiff’s state law claim is a genuine state law

claim, and one within the diversity jurisdiction. If it

is preempted, dismissal is the proper outcome—

but dismissal on the merits, with prejudice like other

merits judgments, not dismissal for want of federal

jurisdiction.

To the merits, then. The plaintiff’s targets are “chewy

bars” made and sold by the defendants. (These should

not be confused with the product sold by Quaker Oats

under its trademark “Quaker Chewy Bars,” which is not

at issue in this case, though there is a similar case involving that product: Chacanaca v. Quaker Oats Co., 752

F. Supp. 2d 1111 (N.D. Cal. 2010).) Typical is Kellogg’s

chocolate-chip bar “Fiber Plus.” A side panel of the

Fiber Plus box contains a table captioned “Nutrition
4 No. 10-3267

Facts” (the table is required on packages of all packaged

food items, 21 U.S.C. § 343(q)(1); 21 C.F.R. § 101.9) which

states that a serving contains 9 grams of “Dietary Fiber”

and that this is 35 percent of one’s “Daily Value” of

dietary fiber. On the front of the box a circle encloses

the words “35% of your daily fiber.”

The complaint alleges that the principal fiber, by

weight, in Fiber Plus bars (as in the other chewy bars

made by the defendants) is inulin extracted from chicory

root. The complaint describes inulin so extracted (as

distinct from inulin found, and consumed without its

having been processed, in bananas, onions, leeks, Jerusalem artichokes, and other vegetables) as a “non-natural”

fiber. This may seem an odd way to describe inulin

derived from chicory root, a plant; but what is meant is

that this inulin is processed, whereas if you eat a

banana you are getting inulin in an unprocessed form.

Nowhere does the Fiber Plus box state that the

principal fiber is inulin from chicory root, though the

label does list “chicory root extract” first, and “inulin

from chicory root” a few items later, in the list of the

product’s ingredients.

The complaint alleges that inulin provides fewer of the

benefits of consuming fiber (these are mainly promoting the regularity of bowel movements, lowering

cholesterol, and making it easier to avoid gaining

weight), causes stomach problems in some people, and

is harmful to women who are pregnant or breast feeding.

Nowhere does the package state that the product

contains a form of fiber that is inferior to “natural” fiber
No. 10-3267 5

and actually harmful to some consumers. (Although the

procedural posture of the case requires us to assume the

truth of the plaintiff’s allegations, we of course do not

vouch for their truth, which the defendants vigorously

contest.)

The complaint thus states a garden-variety consumer

protection claim, but one blocked, the district judge

ruled, by federal law. A provision of the Federal Food,

Drug, and Cosmetic Act, 21 U.S.C. § 343-1(a)(5), added

by the Nutrition Labeling and Education Act of 1990,

forbids states (or their political subdivisions, a qualification we can ignore) to impose “any requirement respecting any claim of the type described in section 343(r)(1)

[of the Food, Drug, and Cosmetic Act] . . . made in the

label or labeling of food that is not identical to the requirement of section 343(r).” The state thus can impose

the identical requirement or requirements, and by doing

so be enabled, because of the narrow scope of the preemption provision in the Nutrition Labeling and Education Act, to enforce a violation of the Act as a violation of state law. See also In re Pepsico, Inc. Bottled Water

Marketing and Sales Practices Litigation, 588 F. Supp. 2d 527,

532 (S.D.N.Y. 2008); “Beverages: Bottled Water,” 60 Fed.

Reg. 57076, 57120 (Final Rule, Nov. 13, 1995). This is

important because the Food, Drug, and Cosmetic Act

does not create a private right of action. Medtronic, Inc. v.

Lohr, 518 U.S. 470, 487 (1996); Kemp v. Medtronic, Inc.,

231 F.3d 216, 236 (6th Cir. 2000).

A state can also ask the Food and Drug Administration to exempt from the requirement of “identicalness” a
6 No. 10-3267

state (or local) requirement “designed to address a particular need for information which need is not met by

the requirements” imposed by federal law. 21 U.S.C. § 343-

1(b)(3). But neither Illinois nor any of its political

subdivsions has obtained—or even, as far as we know,

sought—such an exemption.

It is easy to see why Congress would not want to allow

states to impose disclosure requirements of their own on

packaged food products, most of which are sold nationwide. Manufacturers might have to print 50 different

labels, driving consumers who buy food products in

more than one state crazy.

The critical question presented by the appeal is therefore what requirements the federal law imposes on the

labeling of dietary fiber. Section 343(r)(1)(A) governs

“a claim . . . made in the label or labeling of . . . food which

expressly or by implication characterizes the level of any

nutrient which is of the type required by [section

343](q)(1).” So we go to section 343(q)(1) and find in

subsection (D) a requirement (the only statutory

labeling requirement that is pertinent to this case) that

the “label or labeling” of food products intended for

human consumption state “the amount of . . . dietary

fiber . . . contained in each serving size or other unit

of measure.” Other requirements for labeling claims

relating to dietary fiber are set forth in implementing

regulations of the Food and Drug Administration the

validity of which is not challenged. The form and content

of such claims are set forth in 21 C.F.R. § 101.54(d).

The labeling of Fiber Plus and the other products chal-
No. 10-3267 7

lenged by the plaintiff is compliant with that regulation

and with the other regulations relating to health claims

for dietary fiber. See, e.g., 21 C.F.R. § 101.76. All the

FDA’s requirements relating to labeling that mentions

dietary fiber are incorporated in section 343(r)(1) as

requirements to which any labeling disclosures required

by a state must be identical. Cf. City of New York v. FCC,

486 U.S. 57, 63-64 (1988).

The disclaimers that the plaintiff wants added to the

labeling of the defendants’ inulin-containing chewy bars

are not identical to the labeling requirements imposed on

such products by federal law, and so they are barred. The

information required by federal law does not include

disclosing that the fiber in the product includes inulin

or that a product containing inulin produces fewer

health benefits than a product that contains only “natural” fiber, or that inulin from chicory root should not

be consumed by pregnant or lactating women. The only

mention of inulin that we have found in a federal regulation appears in a regulation issued by the Department of Agriculture that lists inulin as one of the

“nonorganically produced agricultural products [that]

may be used as ingredients in or on processed products

labeled as ‘organic.’ ” 7 C.F.R. § 205.606(m). The term

“nonorganically produced” indicates that the reference

is to, or at least includes, inulin extracted from chicory

root.

Even if the disclaimers that the plaintiff wants added

would be consistent with the requirements imposed by

the Food, Drug, and Cosmetic Act, consistency is not the
8 No. 10-3267

test; identity is. Maybe such disclaimers would be a

good thing (an issue on which we take no position) and

the FDA should require them, but that is irrelevant to

this appeal.

Although it is merely icing on the cake, we add that

the plaintiff’s suit fails to state a claim under the principal

Illinois law on which she pitches her case. The Illinois

Consumer Fraud and Deceptive Business Practices Act

does not apply to “actions or transactions specifically

authorized by laws administered by any regulatory

body or officer acting under statutory authority of this

State or the United States.” 815 ILCS 505/10b(1). The

representations on the packaging of the defendants’

chewy bars concerning dietary fiber are specifically

authorized by the federal statutes and regulations that

we’ve discussed.

We have not mentioned all the issues presented by

the plaintiff’s appeal because her claims relating to some

of them are frivolous, insufficiently explained in her

briefs to be intelligible, or forfeited because they were

not presented in the district court.

The judgment of the district court is altered to a judgment of dismissal under Fed. R. Civ. P. 12(b)(6) with

prejudice, and so altered is

AFFIRMED.

10-17-11