[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11330

____________________

A1A BURRITO WORKS, INC.,

a Florida corporation,

A1A BURRITO WORKS TACO SHOP 2, INC.,

a Florida corporation,

JUNIPER BEACH ENTERPRISES, INC.,

a Florida corporation, on behalf of themselves and those similarly 

situated,

Plaintiffs-Appellants,

versus

SYSCO JACKSONVILLE, INC.,

a Delaware corporation,

Defendant-Appellee.

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2 Opinion of the Court 22-11330

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:21-cv-00041-TJC-JBT

____________________

Before GRANT, TJOFLAT, Circuit Judges, and HUFFAKER,

∗ District 

Judge.

HUFFAKER, District Judge:

Plaintiffs A1A Burrito Works, Inc.; A1A Burrito Works Taco 

Shop 2, Inc.; and Juniper Beach Enterprises, Inc. (the Restaurants) 

purchase packaged poultry products from Defendant Sysco 

Jacksonville, Inc., for eventual resale to consumers. The 

Restaurants brought a putative class action alleging that Sysco 

violated the Florida Deceptive and Unfair Trade Practices Act 

(FDUTPA) and breached its contracts with the Restaurants when 

Sysco regularly delivered underweight boxes of poultry. The 

district court dismissed the Restaurants’ claims with prejudice on 

the grounds that the Poultry Products Inspection Act (PPIA or the 

Act) preempted their state law claims. According to the district 

court, the Restaurants’ claims impermissibly sought to impose on 

Sysco labeling requirements that are “in addition to, or different 

than” the requirements prescribed by federal law. The question for 

∗ Honorable R. Austin Huffaker, Jr., United States District Judge for the Middle 

District of Alabama, sitting by designation.

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22-11330 Opinion of the Court 3

this Court is whether the Restaurants plausibly pleaded state law 

claims premised on Sysco’s allegedly misleading labels on its 

poultry packages that are not preempted by federal law.

After careful review, and with the benefit of oral argument, 

we affirm in part, reverse in part, and remand for further 

proceedings. On this record, the Restaurants have not shown that 

the district court erred in dismissing their FDUTPA claim as 

preempted. But the district court did err in dismissing the

Restaurants’ breach of contract claim to the extent the Restaurants 

allege that they did not receive the amount of poultry for which 

they paid in accordance with their contracts with Sysco. Such a 

claim is not preempted because it merely seeks to enforce the 

parties’ private agreements regarding the cost and weight of 

poultry packages and does not amount to a state imposing a

labeling requirement inconsistent with federal regulations.

I. 

A.

Several federal statutes regulate food products. The United 

States Department of Agriculture regulates egg products under the 

Egg Products Inspection Act, see generally 21 U.S.C. §§ 1031–56; 

meat products under the Federal Meat Inspection Act, see 

generally 21 U.S.C. §§ 601–95 (FMIA); and poultry products under 

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4 Opinion of the Court 22-11330

the PPIA, see generally 21 U.S.C. §§ 451–73.1 The Food and Drug 

Administration regulates all other food products under the Federal 

Food, Drug, and Cosmetic Act, see generally 21 U.S.C. §§ 301–399i 

(FDCA or FDC Act).

As relevant here, the PPIA regulates the weighing and 

labeling of poultry products. See generally 21 U.S.C. §§ 451–73. 

The Act prohibits the sale or transport of “misbranded” poultry 

products. Id. § 458(a)(2)(A). In turn, the term “misbranded” applies 

to a poultry product “if its labeling is false or misleading in any 

particular” or “unless it bears a label showing . . . an accurate 

statement of the quantity of the product in terms of weight, 

measure, or numerical count,” with allowances for “reasonable 

variations” established by regulation. Id. § 453(h)(1), (h)(5)(B). The 

Act also contains an express preemption clause prohibiting states 

from imposing “[m]arking, labeling, packaging, or ingredient 

requirements . . . in addition to, or different than, those made under 

this chapter.” Id. § 467e. However, the Act allows states to exercise 

“concurrent jurisdiction,” consistent with the Act’s requirements, 

over the inspection of poultry products for the purpose of 

preventing the distribution of misbranded products. Id.

The Act’s implementing regulations require labels to “bear 

a statement of the quantity of contents in terms of weights or 

measures.” 9 C.F.R. § 381.121(a). Like the statute, the regulations 

1 The parties’ briefs discuss both the FMIA and the PPIA. The district court’s 

opinion below addressed only the PPIA. Since the parties’ dispute 

unquestionably concerns poultry products, our opinion focuses on the PPIA.

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prohibit false or misleading labeling. Id. § 381.129(a) (“No poultry 

product subject to the Act shall have any false or misleading 

labeling or any container that is so made, formed, or filled as to be 

misleading.”). 

Additionally, the regulations incorporate weighing procedures contained in the National Institute of Standards and 

Technology (NIST) Handbook 133, Fourth Edition, January 2005 

(Handbook), which is published by the United States Department 

of Commerce. Id. § 442.2. The Handbook was “developed 

primarily for the use of government officials” but “should also be 

useful to commercial and industrial establishments in the areas of 

packaging, distribution, and sale of commodities.” U.S. Dep’t of 

Com., Nat’l Inst. of Standards & Tech., NIST Handbook 133, 

Checking the Net Contents of Packaged Goods iii (4th ed., Jan. 

2005). 

The Handbook sets forth six basic test procedures for 

weighing products: 

1. Identify and define the inspection lot. 

2. Select the sampling plan. 

3. Select the random sample. 

4. Measure the net contents of the packages in the 

sample. 

5. Evaluate compliance with the Maximum 

Allowable Variation MAV) requirement. 

6. Evaluate compliance with the average requirement. 

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NIST Handbook 133, supra, at Ch. 2.3, page 10 (emphasis omitted). 

The Handbook explains the pros and cons of testing

packages among different levels of the supply chain: retail, 

wholesale, and point-of-pack. The Handbook explains that retail 

testing is “an easily accessible, practical means for State, county and 

city jurisdictions to monitor packaging procedures and to detect 

present or potential problems.” Id. at Ch. 1.1, page 1. It cautions 

that retail testing generally “is not conducive to checking large 

quantities of individual products of any single production lot,” and 

“[t]herefore, follow-up inspections of a particular brand or lot code 

number at a number of retail and wholesale outlets, and ultimately 

at the point-of-pack are extremely important aspects in any 

package-checking scheme.” Id. at Ch. 1.1, page 1. The Handbook 

further notes that “[a]t the point-of-sale, a large number of 

processes may affect the quality or quantity of the product. 

Therefore, there may be many reasons for any inspection lot being 

out of compliance.” Id. Examples include mishandling the product 

in the store, the retailer’s failure to rotate stock, mishandling by a 

distributor, failure of some part of the packaging process, and 

moisture loss. Id. at Ch. 1.1, pages 1–2. 

The Handbook also explains the purpose of random 

sampling and the procedures for implementing it. Random sampling “is necessary to ensure statistical validity and reliable data,” 

and improper sampling “can lead to bias and unreliable results.” Id.

at Ch. 1.3, page 4. Random sampling “is accomplished by using 

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random numbers to determine which packages are chosen for 

inspection.” Id.2 

But the Handbook also states that “shortcuts” and “audit 

tests” may be used “to speed the process of detecting possible net 

content violations.” NIST Handbook 133, supra, at Ch. 1.3, page 

4. These shortcuts include “using smaller sample sizes” and 

“selecting samples without collecting a random sample.” Id. The 

shortcuts cannot be used to take enforcement action, however. 

The Handbook explains that food package content labels 

must meet two separate requirements to be considered “accurate.” 

Id. at Ch. 1.2, page 2. First, accuracy must be “applied to the 

average net contents of the packages in the lot.” Id. “The second 

requirement is applied to negative errors in individual packages.” 

Id. Concerning the individual package requirement, the Handbook states: “[P]ackages that are underfilled by more than the 

Maximum Allowable Variation specified for the package are 

considered unreasonable errors. Unreasonable shortages are not 

generally permitted, even when overages in other packages in the 

2 The Handbook sets forth a detailed package selection procedure using 

random numbers, which includes: (1) identifying each package in the lot of 

packages with a specific number; and (2) obtaining a series of random 

numbers, which indicate exactly which packages in the lot will be taken for 

the sample. Id. at app. B, page B-1. To select a random starting place on the 

series of random numbers, the Handbook instructs to “choose a starting page 

in the random number table and with eyes closed, drop a pencil anywhere on 

the page to indicate a starting place in the table.” Id.

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same lot, shipment or delivery compensate for such shortage.” Id.

at 2–3. 

B.

The Restaurants routinely order packaged food products, 

including poultry products, from Sysco pursuant to contracts called 

Distribution Agreements. A copy of A1A Burrito Works’ 

Distribution Agreement with Sysco is attached to the second 

amended complaint (Distribution Agreement). The Distribution 

Agreement sets forth, among other things, pricing and delivery 

terms. As relevant here, it provides that pricing is determined 

based on a fee per pound.3 The Distribution Agreement also 

contains Sysco’s warranty that its products will “not be adulterated 

or misbranded within the meaning of the FDC Act” (i.e., not falsely 

or misleadingly labeled).

In their second amended complaint (the operative 

complaint), the Restaurants allege that their contracts with Sysco 

call for pricing to be determined based on a fee per pound. They 

also allege that on thirteen separate occasions over an 

approximately one-year period, they ordered and paid for 40-

pound boxes of poultry but received less than 40 pounds. Each 

package was labeled, and the Restaurants were charged for, 40 

pounds, but each package weighed less, ranging from 34.7 pounds 

3 For the sake of clarity, record citations are based on the CM/ECF document 

page and paragraph numbers.

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(resulting in an overcharge of 5.3 pounds) to 37.3 pounds (resulting 

in an overcharge of 2.7 pounds). 

The Restaurants allege that in weighing the poultry

packages received from Sysco, they “undertook a good-faith, 

commercially reasonable weighing process consistent in all 

material aspects with NIST Handbook 133,” and that the process 

“considered the maximum and minimum allowable variations of 

weight for the type of Packaged Food, whether the product was 

frozen or thawed, and the tare weight.” 

The Restaurants further allege that in August 2021, the 

Florida Department of Agriculture and Consumer Services 

inspected Sysco poultry packages at two of A1A Burrito Works’ 

locations. The state inspectors inspected multiple packages that 

were advertised and sold as weighing 40 pounds, but each package 

was underweight. 

The Restaurants filed a putative class action in state court 

against Sysco, asserting claims for breach of contract under Florida 

law and violation of the FDUTPA, FLA. STAT. § 501.201 et seq. 

Sysco removed the case to federal court and filed a motion to 

dismiss. The Restaurants sought and obtained permission to 

amend their complaint twice. 

In the operative complaint, the Restaurants allege that Sysco 

systematically delivered underweight poultry packages to its 

restaurant customers. Consequently, according to the Restaurants, the labels on the poultry packages were misleading 

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10 Opinion of the Court 22-11330

concerning weight in violation of the FDUTPA. Concerning the 

breach of contract claim, the Restaurants allege that they had 

entered into Distribution Agreements with Sysco that provided for 

pricing to be based on a fee per pound and in which Sysco 

warranted that its products (1) “will meet the written specifications 

provided by Sysco” and (2) “will not be adulterated or misbranded 

within the meaning of the FDC Act.” The Restaurants further 

allege that “despite being charged based on specified advertised 

weights, Sysco delivered lower weights while simultaneously 

charging for higher weights.” Thus, according to the Restaurants, 

Sysco breached its contracts with them and other class members

when it charged and collected payment for “contractually agreedupon” 40-pound poultry packages while delivering packages 

weighing less. The Restaurants claim damages “consisting of the 

difference in price between what was purchased and what should 

have been delivered.” 

Sysco moved to dismiss the second amended complaint, 

raising several grounds for dismissal or narrowing of the issues, 

including that the Restaurants’ claims were preempted by the 

PPIA. The district judge referred the motion to the magistrate 

judge, and the magistrate judge recommended that the second 

amended complaint be dismissed with prejudice, addressing only 

Sysco’s preemption argument. The magistrate judge concluded 

that the Restaurants’ claims were preempted because they would 

impose different standards for testing the net weight of Sysco’s 

boxes of poultry than the standards prescribed by federal law. The 

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magistrate judge reasoned that the second amended complaint 

demonstrated that the Restaurants’ weighing procedures are 

“materially different” than the federal procedures governing Sysco 

because, for example, the Restaurants “did not follow, or followed 

different, requirements regarding inspection lots, random 

sampling, and evaluating average net weight.” Citing cases from 

the United States Court of Appeals for the Ninth Circuit, the 

magistrate judge opined that to avoid preemption, the Restaurants 

“must plausibly allege that the process they used in testing [Sysco’s] 

compliance with its net weight label statement is the same as that 

governing [Sysco].”

The magistrate judge characterized as vague and conclusory 

the Restaurants’ allegation that they undertook a good-faith, 

commercially reasonable weighing process consistent in all 

materials aspects with the Handbook. The magistrate judge also 

criticized the second amended complaint for not indicating the 

“total number of packages received from [Sysco] during the 

relevant time period, how the underweight packages were selected 

from that total for testing (whether there was a random sample 

taken from a defined inspection lot), or that [the Restaurants]

obtained average weights of multiple packages.” The magistrate 

judge rejected the Restaurants’ position that, “from the limited 

sample of underweight packages at the retail level,” the court could 

“reasonably infer that [Sysco’s] wholesale process is somehow 

flawed or suspect, and thus, [Sysco] is liable for misleading 

labeling.” 

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The magistrate judge also observed that the PPIA does not 

necessarily preempt a breach of contract claim because Sysco “may 

have voluntarily taken on additional obligations by contract.” But 

according to the magistrate judge, the contract terms at issue 

“expressly invoke the same federal requirements that determine 

preemption,” citing the second amended complaint’s allegation 

and the Distribution Agreement’s provision that “Sysco represents 

and warrants that all Products . . . will not be adulterated or 

misbranded within the meaning of the [Federal Food, Drug, and 

Cosmetic Act].” Thus, according to the magistrate judge, the 

preemption analysis for the FDUTPA and breach of contact claims 

is the same—the Restaurants “must plausibly allege that [Sysco’s] 

labels are misleading as defined by federal law”—but the 

Restaurants had not done so. The magistrate judge did not discuss 

the second amended complaint’s allegations that the parties’ 

contract calls for pricing to be determined based on a fee per pound

and “despite being charged based on specified advertised weights, 

Sysco delivered lower weights while simultaneously charging for 

higher weights.”

The district judge adopted the report and recommendation, 

granted Sysco’s motion, and dismissed the Restaurants’ second 

amended complaint with prejudice. The Restaurants timely 

appealed.

II. 

“We review preemption determinations de novo.” 

Cavalieri v. Avior Airlines C.A., 25 F.4th 843, 847 (11th Cir. 2022) 

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(per curiam) (quoting Bailey v. Rocky Mountain Holdings, LLC, 

889 F.3d 1259, 1266 (11th Cir. 2018)). And we review a district 

court’s ruling on a motion to dismiss de novo, accepting the

complaint’s factual allegations as true and construing them in the 

light most favorable to the nonmovants. Id.

III. 

A.

The Restaurants argue that, at a minimum, their breach of 

contract claim is not preempted. They assert that, despite acknowledging that “customers may seek greater contractual protections 

that do not rely on federal standards for mislabeling,” the district 

court nonetheless improperly conflated their FDUTPA and breach 

of contract claims and failed to separately analyze their 

independent breach of contract claim—that Sysco failed to deliver 

the products contracted and paid for. The Restaurants explain that 

their contracts with Sysco provided for pricing to be based on a fee 

per pound, and despite being charged for specified weights, Sysco 

“delivered different and lower weights while charging for higher 

weights.” Thus, according to the Restaurants, Sysco breached its 

contracts with them “by not delivering contractually agreed-upon 

weights for which the Restaurants paid as per the contract.” Sysco 

does not respond to this argument, instead focusing on the 

operative complaint’s allegations that Sysco violated the FDC Actrelated warranty.

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We have not yet addressed breach of contract claims in the 

context of PPIA preemption. But in the context of other federal 

statutes, both this Court and the United States Supreme Court have 

held that breach of contract claims seeking to enforce a defendant’s 

voluntary undertaking are not preempted because such claims do 

not amount to a state imposing a requirement inconsistent with 

federal regulations. For example, we have found breach of 

contract claims against airlines concerning pricing not to be 

preempted by the Airline Deregulation Act (ADA), even though 

the ADA prohibits state regulation of airline pricing.4 Am. Airlines, 

Inc. v. Wolens, 513 U.S. 219, 222 (1995) (“We hold that the ADA’s 

preemption prescription bars state-imposed regulation of air 

carriers, but allows room for court enforcement of contract terms 

set by the parties themselves.”); Cavalieri, 25 F.4th at 846 

(“Plaintiffs’ breach of contract claim seeks merely to enforce the 

parties’ private agreements regarding the cost of passage and does 

not invoke state laws or regulations to alter the agreed-upon 

price.”). 

In Cavalieri, the plaintiffs alleged that they had purchased 

commercial airline tickets from the defendant airline, entering into 

a contract whose terms are reflected in the airline’s “Contract of 

Carriage and the issued tickets.” 25 F.4th at 846. According to the 

4 Unlike the PPIA, which prohibits states from imposing labeling or packaging

requirements “in addition to, or different than” federal requirements, 21 

U.S.C. § 467e, the ADA prohibits states from imposing any law or regulation 

related to an air carrier’s pricing, see 49 U.S.C. § 41713(b)(1).

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plaintiffs, the ticket price included all taxes and fees. Id. However, 

the airline later told the plaintiffs that they “had to pay an additional 

$80 ‘Exit Fee’ before being allowed to board their flights.” Id. The 

district court dismissed the plaintiffs’ putative class action 

complaint on the grounds that the breach of contract claim was 

preempted by the ADA. Id. at 847. The plaintiffs appealed, and we 

reversed. Id. at 854. In rejecting preemption’s applicability, we 

explained how the plaintiffs alleged that the airline had agreed to 

transport them to their destination for the ticketed price, “inclusive 

of all fees and taxes,” and the airline allegedly breached that 

agreement by charging an additional Exit Fee. Id. at 851. We thus 

concluded that the plaintiffs’ claim “seeks recovery solely for the 

alleged breach of [the airline’s] own, self-imposed undertaking 

regarding the price charged for transport.” Id.

Additionally, in Bates v. Dow Agrosciences LLC, the 

Supreme Court held that an express warranty claim was not 

preempted by another federal labeling statute—the Federal 

Insecticide, Fungicide, and Rodenticide Act (FIFRA)—even though 

the express warranty was located on the product’s label, explaining 

that “a cause of action on an express warranty asks only that a 

manufacturer make good on the contractual commitment that it 

voluntarily undertook by placing that warranty on its product.” 

544 U.S. 431, 444 (2005). The plaintiffs in Bates sued the manufacturer of Strongarm, a weed killer used on peanut crops, over a 

label on the product. Id. at 434–36. The label stated: “Use of 

Strongarm is recommended in all areas where peanuts are 

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16 Opinion of the Court 22-11330

grown.” Id. at 435. The plaintiffs alleged that the manufacturer

knew or should have known that Strongarm would stunt peanut 

growth in soils with pH levels of 7.0 or greater, and that when the 

plaintiffs used Strongarm on their farms, whose soils have pH 

levels of 7.2 or higher, Strongarm damaged their peanut crops and

failed to control the growth of weeds. Id. The plaintiffs brought 

an express warranty claim under Texas law concerning the label’s 

“warranty” that the product’s use was recommended “in all areas 

where peanuts are grown.” Id. at 435–36.

FIFRA’s preemption provision prohibits states from 

“impos[ing] or continu[ing] in effect any requirements for labeling 

or packaging in addition to or different from those required under 

this subchapter.” 7 U.S.C. § 136v(b).5 The Fifth Circuit Court of 

Appeals affirmed the district court’s dismissal on preemption 

grounds, interpreting § 136v(b) to preempt any state law claim in 

which “a judgment against [the manufacturer] would induce it to 

alter its product label.” Bates, 544 U.S. at 436 (citation omitted).

The Supreme Court concluded that the plaintiffs’ express 

warranty claim was not preempted. Id. at 444. The Court

observed that common-law rules requiring manufacturers “to 

honor their express warranties or other contractual commitments

5 This language is comparable to the PPIA’s preemption provision, which 

prohibits states from imposing labeling or packaging requirements “in 

addition to, or different than, those made under this chapter,” 21 U.S.C. 

§ 467e.

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plainly do not qualify as requirements for ‘labeling or packaging,’”

explaining that such rules do not require manufacturers to “label 

or package their products in any particular way.” Id. (emphasis 

added). The Court acknowledged that the manufacturer’s express 

warranty was located on the product’s label but reasoned that an 

express warranty claim “asks only that a manufacturer make good 

on the contractual commitment that it voluntarily undertook by 

placing that warranty on its product.” Id. And “[b]ecause this 

common-law rule does not require the manufacturer to make an 

express warranty, or in the event that the manufacturer elects to 

do so, to say anything in particular in that warranty, the rule does 

not impose a requirement ‘for labeling or packaging.’” Id. at 444–

45.

Citing Bates, at least one district court in this circuit has 

observed that the PPIA generally would not preempt an express 

warranty claim “because an express warranty claim merely holds 

the defendant responsible for delivering the product as warranted.” 

Kuenzig v. Kraft Foods, Inc., No. 8:11-cv-838-T-24 TGW, 2011 WL 

4031141, at *7 (M.D. Fla. Sept. 12, 2011) (citing Bates, 544 U.S. at 

431).

The Restaurants argue that their independent breach of 

contract claim—that they have a contract with Sysco under which 

they seek relief for Sysco’s alleged failure to deliver what was 

contracted and paid for—is not preempted because Sysco 

voluntarily undertook obligations to deliver contractually agreedupon weights at contractually agreed-upon prices. We agree. The 

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Restaurants pleaded a breach of contract claim seeking merely to 

enforce the parties’ voluntary agreement regarding pricing and 

weight, and it does not depend on federal labeling or packaging 

standards. Cf. Cavalieri, 25 F.4th at 846. The Restaurants allege 

that Sysco agreed for the pricing of packaged poultry to be based 

on a fee per pound, and that Sysco breached that agreement by 

charging the Restaurants for packages containing 40 pounds while 

delivering packages containing less. Thus, similar to the express 

warranty claim in Bates and the breach of contract claim in 

Cavalieri, the Restaurants’ claim asks only that Sysco honor the 

contractual obligations regarding prices and weights of packaged 

poultry that Sysco voluntarily undertook when it entered into 

Distribution Agreements with the Restaurants. See Bates, 544 U.S. 

at 444; Cavalieri, 25 F.4th at 851. A common-law rule requiring 

Sysco to honor its contractual commitments “plainly do[es] not 

qualify as [a] requirement[] for ‘labeling or packaging’” because 

such a rule does not require Sysco to label or package its poultry 

products “in any particular way.” See Bates, 544 U.S. at 444. 

Because the Restaurants’ breach of contract claim does not impose 

any labeling or packaging requirement on Sysco, the PPIA does not 

preempt it. See id.

Sysco’s alleged obligation to deliver the amount of packaged 

poultry for which the Restaurants were charged and for which they 

paid, and not some lesser amount, is a self-imposed undertaking, 

the alleged breach of which gives rise to a cause of action that the 

PPIA does not preempt. In focusing exclusively on the RestUSCA11 Case: 22-11330 Document: 54-1 Date Filed: 12/06/2023 Page: 18 of 25
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aurants’ allegation and the contract provision concerning the FDC 

Act, the district court overlooked the more straightforward breach 

of contract claim that was pleaded in the operative complaint. 

Thus, we conclude that the district court erred in dismissing the 

Restaurants’ breach of contract claim.

B.

The Restaurants also argue that the district court erred in 

dismissing their FDUTPA claim as preempted. They argue that the 

Handbook was designed to assist government employees conducting compliance testing and did not create a pleading standard 

for businesses seeking to bring claims concerning mislabeled 

products. They further contend that it is impossible for businesses 

to strictly comply with all of the Handbook’s weighing procedures 

prior to filing a lawsuit. 

The district court reasoned that to avoid preemption, the 

Restaurants “must plausibly allege that the process they used in 

testing [Sysco’s] compliance with its net weight label statement is 

the same as that governing [Sysco].” On appeal, Sysco distances 

itself somewhat from this position, and it insists we need not hold 

that the Restaurants were required to “follow every jot and tittle” 

of the Handbook’s weighing procedures. Instead, according to 

Sysco, we may affirm the district court on the grounds that the 

procedures allegedly used by the Restaurants are so materially 

different from the federal procedures that the second amended 

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20 Opinion of the Court 22-11330

complaint fails to plausibly allege that Sysco violated federal law, 

thereby rendering the Restaurants’ claims preempted. 

For a state requirement to be preempted by the PPIA, it 

must satisfy two conditions: (1) it must be a requirement for 

“labeling” or “packaging,” and (2) it must impose a labeling or 

packaging requirement that is “in addition to, or different than, 

those made under” the PPIA. See 21 U.S.C. § 467e; see also Bates, 

544 U.S. at 444 (analyzing FIFRA’s preemption provision).

If Sysco’s poultry packages are not underweight when 

evaluated according to federal regulations, any state law claim that 

the packages are nonetheless underweight—and thus the label 

misleading—is preempted because it would impermissibly impose 

weight—and thus labeling—requirements on Sysco that are “in 

addition to, or different than” those imposed by federal law. Thus, 

while we do not agree fully with the district court’s reasoning,6 we 

agree with the district court insofar as it concluded that the 

6 We disagree with the district court to the extent it concluded that the 

Restaurants failed to adequately allege random sampling, in light of the 

Handbook’s permitting “[s]hortcuts . . . to speed the process of detecting 

possible net content violations, including “selecting samples without 

collecting a random sample.” See NIST Handbook 133, supra, at Ch. 1.3, page 

4. Additionally, we disagree with the district court to the extent it concluded 

that the Restaurants failed to adequately allege testing beyond the retail level, 

given that the Handbook lauds retail-level testing as an “easily accessible, 

practical means for State, county and city jurisdictions to monitor packaging 

procedures and to detect present or potential problems.” See id. at Ch. 1.1, 

page 1.

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Restaurants had to allege sufficient facts to permit the reasonable 

inference that Sysco delivered packaged poultry that was 

underweight by federal standards.

After carefully considering the Restaurants’ arguments 

raised in their opening brief on appeal, the Restaurants have not 

persuaded us that the district court erred in concluding that they

failed to plausibly allege the poultry packages were underweight 

by federal standards. The district court identified multiple 

purported deficiencies in the operative complaint that, according 

to the district court, operated as barriers to the plausibility of the 

Restaurants’ claim, including the Restaurants’ failure to allege the 

total number of poultry packages received from Sysco during the 

relevant period or the packages’ average weights—information 

known or knowable to the Restaurants. But the Restaurants do 

not explain, let alone persuasively so, why their claim is plausible 

(and not preempted) notwithstanding these deficiencies, particularly the Handbook’s admonition that accuracy of content labels

must be “applied to the average net contents of the packages in the 

lot,” NIST Handbook 133, supra, at Ch. 1.2, page 2.

In their reply brief, the Restaurants argued that they 

established that Sysco’s poultry packages “exceeded the applicable 

MAV,” citing as an example the second amended complaint’s

allegation that on one occasion, one of the Restaurants received a 

package weighing approximately 35.4 pounds, “resulting in an 

overcharge of 4.6 pounds—a stunning 11.5% of the total order.” 

And at oral argument, the Restaurants argued that “all [they] [had] 

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22 Opinion of the Court 22-11330

to plead is that these individual packages were beyond the 

Maximum Allowable Variation, MAV,” an argument that was also 

advanced by the Amicus. However, neither of these arguments

appears in the Restaurants’ opening brief. 

“[W]e do not consider arguments ‘not raised in a party’s 

initial brief and made for the first time at oral argument.’” Holland 

v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012) (quoting APA Excelsior 

III L.P. v. Premiere Techs., Inc., 476 F.3d 1261, 1269 (11th Cir. 

2007)). “Issues not raised in an initial brief are deemed forfeited 

and will not be addressed absent extraordinary circumstances.” 

Anthony v. Georgia, 69 F.4th 796, 807 (11th Cir. 2023) (citing 

United States v. Campbell, 26 F.4th 860, 873 (11th Cir.) (en banc), 

cert. denied, 143 S. Ct. 95 (2022)). Extraordinary circumstances 

may exist when:

(1) the issue involves a pure question of law and 

refusal to consider it would result in a miscarriage of 

justice; (2) the party lacked an opportunity to raise the 

issue at the district court level; (3) the interest of 

substantial justice is at stake; (4) the proper resolution 

is beyond any doubt; or (5) the issue presents 

significant questions of general impact or of great 

public concern.

Campbell, 26 F.4th at 873. If we conclude that one of these 

circumstances applies, we must “then decide whether the issue is

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22-11330 Opinion of the Court 23

extraordinary enough for us to exercise our discretion and excuse 

the forfeiture.” Id. at 875.

The Restaurants’ MAV arguments appear compelling. 

According to the Handbook, food package content labels must 

meet two separate requirements to be considered “accurate.” 

NIST Handbook 133, supra, at Ch. 1.2, page 2. First, accuracy must 

be “applied to the average net contents of the packages in the lot.” 

Id. “The second requirement is applied to negative errors in individual packages.” Id. The Handbook further states that “[t]hese 

requirements apply simultaneously to the inspection of all lots of 

packages except as specified in ‘Exceptions to the Average and 

Individual Package Requirements,’” which are not applicable here. 

Id. Concerning the individual package requirement, the Handbook states: “[P]ackages that are underfilled by more than the 

Maximum Allowable Variation specified for the package are 

considered unreasonable errors. Unreasonable shortages are not 

generally permitted, even when overages in other packages in the 

same lot, shipment or delivery compensate for such shortage.” Id.

at 2–3. 

For 40-pound boxes of poultry, the MAV is 1% of the labeled 

weight, or 0.4 pounds. Id. at tbl. 2-9, page A-11. And the applicable 

sampling plans allow only a small number of packages to be 

underweight beyond the MAV. The Handbook does not allow for 

any packages to be underweight beyond the MAV until the lot size 

exceeds 3,200 and the sample size is 48. Id. at tbl. 2-1, page A-2. 

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24 Opinion of the Court 22-11330

Even then, the lot fails if more than one package is underweight 

beyond the MAV. Id.

Unfortunately for the Restaurants, however, they forfeited 

any argument that they only had to allege that individual packages 

are underweight by more than the MAV because they did not raise 

it in their opening brief. Their opening brief contains a single 

reference to the MAV: a quote of the second amended complaint’s 

allegation that their weighing process “considered the maximum . 

. . allowable variations of weight for the type of Packaged Food.” 

Although “briefs should be read liberally to ascertain the issues 

raised on appeal,” Regions Bank v. Legal Outsource PA, 936 F.3d 

1184, 1200 (11th Cir. 2019) (quoting Allstate Ins. Co. v. Swann, 27 

F.3d 1539, 1542 (11th Cir. 1994)), a liberal reading of the 

Restaurants’ opening brief does not transform their passing 

reference to the MAV into an argument that they can avoid 

preemption solely with MAV-based allegations. And although the 

Restaurants’ belated argument may appear compelling, we lack the 

benefit of full briefing by both sides addressing the meaning of the 

Handbook’s MAV-related provisions. And adherence to the party 

presentation principle is one important reason why we generally 

decline to decide issues not (timely) raised on appeal. See 

Campbell, 26 F.4th at 872; id. at 893–94, 897 (Newsom and Jordan, 

J.J., dissenting).

Additionally, no exceptional circumstances apply here, 

“because a refusal to consider the issue would not result in a 

miscarriage of justice, the issue is not one of substantial justice, the 

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proper resolution is not beyond any doubt, and the issue does not 

present significant questions of general impact or of great public 

concern.” See Anthony, 69 F.4th at 808 (citing Campbell, 26 F.4th 

at 873). Moreover, the issue is not “extraordinary enough for us to 

exercise our discretion and excuse the forfeiture.” See Campbell, 

26 F.4th at 875. Consequently, on this record, the Restaurants have 

failed to show that the district court erred in dismissing their 

FDUTPA claim as preempted.

IV. 

 For the foregoing reasons, we AFFIRM the dismissal of the 

FDUTPA claim, REVERSE the dismissal of the breach of contract 

claim, and REMAND for further proceedings.

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