Filed 2/23/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CAROL LEINING,

Plaintiff and Appellant,

v.

FOSTER POULTRY FARMS, INC. 

et al.,

Defendants and Respondents.

 B291600

 (Los Angeles County

Super. Ct. No. BC588004)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, John Shepard Wiley, Jr., Judge. Affirmed.

Drinker Biddle & Reath, Sheldon Eisenberg, Ryan M. 

Salzman and Mark E. Haddad for Plaintiff and Appellant.

Duane Morris, Michaelle Pardo, Rebecca Bazan and Paul J. 

Killion for Defendants and Respondents American Humane 

Association.

Mayer Brown, Dale J. Giali, Elizabeth Crepps and Donald 

M. Falk for Defendants and Respondents Foster Poultry Farms, 

Inc.

__________________________
2

The American Humane Association has created a farm 

animal welfare program, by which it certifies farm-based food 

producers who comply with its animal welfare standards. If a 

producer complies with American Humane’s standards, the 

producer can use American Humane’s “American Humane 

Certified” logo on its food, provided it also pays a licensing fee for 

use of American Humane’s trademark.

Foster Poultry Farms, Inc. participates in the American 

Humane program and uses the American Humane Certified logo 

on all its chicken products sold in California. Foster Farms must 

obtain federal approval for the labels of its chicken products, and 

has obtained that approval for the labels which include American 

Humane’s logo.

Foster Farms charges more for its chicken than other 

producers whose chicken does not bear the American Humane 

Certified logo. Plaintiff Carol Leining purchased some Foster 

Farms chicken, in reliance on the American Humane Certified 

logo on its label. She believed that the American Humane

certification meant that the chicken had been humanely treated; 

but in this litigation, she alleges that the true facts are American 

Humane certification means nothing, and Foster Farms’s chickens 

were treated inhumanely. 

Leining brought suit against Foster Farms for its allegedly 

misleading labels and against American Humane for its allegedly 

negligent certification. After extensive litigation, both defendants 

were granted summary judgment. We affirm, on the basis that 

Leining has not pleaded a viable cause of action against either 

defendant. The claims against Foster Farms are barred by federal 
3

preemption, and the negligent certification claim against 

American Humane is not viable in the absence of physical injury.1

FACTUAL AND PROCEDURAL BACKGROUND2

1. Allegations of the Complaint

American Humane is a non-profit organization. It operates 

a program called American Humane Certified, which it represents 

“ ‘provide[s] verifiable assurance to customers and retailers that 

products carrying the American Humane CertifiedTM label have 

met rigorous, science-based animal welfare standards and that 

the animals in the program were humanely raised.’ ”

Leining alleges as follows. Foster Farms paid American 

Humane for the use of its certification. The certification “creates 

a reasonable expectation among consumers that the chicken they 

are purchasing is produced under circumstances that would be 

understood to be humane.” This impression is untrue and Foster 

Farms’s chickens are instead treated in a manner that “falls well 

short of a reasonable consumer’s expectation for humane 

treatment.” In fact, American Humane certifies chicken produced 

under the industry’s standard operating procedures, and the birds 

1 The two respondents, the American Humane Association 

and Foster Farms Poultry, Inc., have filed joint briefs in this 

appeal. Not all issues raised in the appeal apply to both 

respondents. We generally use the parties’ names to identify 

them and only use “respondents” or “defendants” when the 

discussion applies to both parties. 

2 Because we conclude that, in effect, both defendants were 

entitled to judgment on the pleadings, we limit our factual 

discussion to the allegations of Leining’s operative complaint and 

matters of which we can take judicial notice, such as guidelines 

promulgated by federal agencies.
4

it certifies are treated no better than any other chicken farmed for 

food. Leining bought Foster Farms’s chicken in reliance on the 

false representation, paying more than the price of other chicken 

which did not carry the American Humane Certified label. 

2. Foster Farms’s Use of the American Humane Certified 

Logo for the Sale of Its Chicken is Federally Approved

All poultry and poultry products sold in the United States 

are subject to the Poultry and Poultry Products Inspection Act 

(PPIA). (21 U.S.C. §§ 451 et seq.) Implementing regulations 

require that no label may be used on poultry or a poultry product 

unless it has been pre-approved by the Food Safety and Inspection 

Service (FSIS).

3 (9 C.F.R. 412.1, subd. (a).)

A label claim “regarding the raising of animals” is 

considered a special statement or claim which requires submission 

of a “sketch” label and approval of that sketch. (9 C.F.R. 412.1, 

subds. (c)-(e).) Foster Farms submitted its labels for sketch 

approval; in order to support its use of the American Humane 

Certified logo, it submitted the certificates of approval it had 

received from American Humane. The FSIS approved the labels

which included the American Humane Certified logo. 

3. FSIS Labeling Guidelines

During the time Foster Farms was using the American 

Humane certification on its label, and well into this appeal, 

animal welfare advocates were challenging the standards used by 

3 There is an exception for “generically approved labels,” 

which are considered preauthorized. (9 C.F.R. 412.2.) The 

exception does not apply in this case.
5

FSIS in its approval of labels which claimed the humane 

treatment of animals used for food.4

In December 2019, the FSIS updated its Labeling Guideline 

on Documentation Needed to Substantiate Animal Raising Claims 

for Label Submission. (<https://www.fsis.usda.gov/wps/wcm/ 

connect/6fe3cd56-6809-4239-b7a2-bccb82a30588/Raising

Claims.pdf?MOD=AJPERES> [as of Feb. 11, 2021], archived at 

<https://perma.cc/LR7E-QMMR>.) The guidelines do not include 

substantive requirements for a claim of humane animal 

treatment, but simply require that the label either describe what 

it means by humane, or, if it uses a third-party certification, 

contain the certifier’s name, logo, and website. (Id. at pp. 10-11, 

15.)

The FSIS responded, via the Federal Register, to a number 

of the comments it had received on its prior guideline, which had 

been published in 2016. (84 FR 71359; see 81 FR 68933.) Of 

4 The issue was raised as early as May 2014, when the 

Animal Welfare Institute submitted a petition for rulemaking, 

asking the FSIS to create a rule mandating that any label claims 

of humane animal treatment, and other animal raising claims, be

supported by third-party certification, from certifiers who audited 

according to published standards which exceeded conventional 

industry practices. (<https://www.fsis.usda.gov/wps/wcm/connect/ 

5bdab0ca-8072-480b-9bd9-c9bc04b56531/Petition-AWI-Labeling0514.pdf?MOD=AJPERES> [as of Feb. 11, 2021], archived at 

<https://perma.cc/5C3B-39QH>.) The petition would ultimately be 

denied in February 2019. (<https://www.fsis.usda.gov/wps/wcm/ 

connect/ed11c92b-d0f8-4208-bae6-2e633bb49b37/14-01-FSISFinal-Response-022219.pdf?MOD=AJPERES> [as of Feb. 11, 

2021], archived at <https://perma.cc/ZS9S-4W86>.) 
6

particular relevance, the FSIS had received comments from 

animal welfare advocacy organizations and individuals who took 

the position that FSIS “currently approves claims based on 

standards that do not meet consumer expectations. To address

these concerns, the comments . . . stated that FSIS should only 

approve animal welfare and environmental stewardship claims 

that have been certified by an independent third-party certifying 

organization that has established standards that exceed the 

conventional industry standards defined by meat and poultry 

trade associations.” (84 FR 71362.) FSIS disagreed, explaining, 

“The issues raised in the comments . . . show that consumers, 

producers, and certifying entities have different views on the 

specific animal production practices that should be associated 

with certain animal welfare or environmental stewardship claims. 

Thus, because animal welfare or environmental stewardship 

claims mean different things to different people, a claim that is 

defined by a specific third-party certifying organization’s animalraising standards cannot reflect the diverse views associated with 

these types of claims.” (84 FR 71362-71363.) 

With respect to third-party certification, FSIS explained, “If 

the claim is certified by a third-party certifying organization, FSIS 

will approve the label bearing the claim if it includes the 

certifying entity’s name, website address, and logo, when the

organization has a logo, as described in the guideline. Under this 

approach, the labeling of a meat or poultry product that bears an 

animal welfare or environmental stewardship claim includes the 

information that consumers need to determine whether the 

animal-raising practices used to define a particular animal claim 

meets their expectations for the claim.” (84 FR 71363, fn.

omitted.)
7

There is no dispute that FSIS approved Foster Farms’s 

labels containing the American Humane logo. Leining does not 

allege that Foster Farms was ever out of compliance with the 

FSIS’s governing guidelines.

4. Plaintiff’s Initial Complaint

On July 13, 2015, Leining filed her class action complaint, 

initially naming only Foster Farms as a defendant. She alleged 

that Foster Farms’s use of the American Humane Certified logo 

on its labels was deceptive and misleading because her 

“objectively reasonable” understanding of the certification was 

that the chickens used by Foster Farms “were afforded a 

comfortable existence and a quick and painless death.” She would 

not have purchased the chicken had she known that Foster 

Farms’s chickens “were not in fact treated humanely, or even 

significantly differently from most other chickens on the market.”

She alleged causes of action for unfair competition, negligent 

misrepresentation, breach of express warranty, and breach of the 

implied warranty of merchantability – all on the theory that the 

label itself was deceptive because the chicken was not produced 

under humane circumstances. 

5. Foster Farms’s Initial Demurrer

Foster Farms demurred. The demurrer is not part of the 

record on appeal, but we do have the court’s ruling sustaining the 

demurrer with leave to amend. The trial court was concerned 

that Leining was attempting to appoint herself arbiter of what is, 

or is not, humane. It explained, “Leining’s complaint has no legal 

basis. Leining cites no case in which a producer complied with 

third party standards but was found guilty of misrepresentation 

or breach of warranty because, in someone’s opinion, the thirdparty standards were lax.” However, the court believed Leining 
8

might be able to state a claim under a different theory, and drew 

the parties’ attention to Hanberry v. Hearst Corp. (1969) 

276 Cal.App.2d 680 (Hanberry), a case which held that, under 

certain circumstances, a plaintiff physically injured by a product 

may be able to state a claim in negligent misrepresentation

against a third party who had endorsed the product.

6. Leining’s Operative Complaint

The operative complaint is Leining’s first amended 

complaint. Leining re-alleged her causes of action against Foster 

Farms for unfair competition, negligent misrepresentation, breach 

of express warranty, and breach of the implied warranty of 

merchantability. She reasserted her original theory of relief 

supporting each of these causes of action—that her objectively 

reasonable understanding of the American Humane Certified logo

on the label was that Foster Farms’s chickens had been afforded a 

comfortable existence and a quick and painless death, but this 

was untrue.

In accordance with the trial court’s suggestion, Leining also 

added American Humane as a defendant, and alleged against it a 

cause of action for negligent misrepresentation. Leining 

specifically alleged that American Humane either made no 

examination of whether Foster Farms’s chickens were humanely 

raised according to science-based standards or, if any examination 

had been performed, it was careless and negligent. 

7. Demurrers to the Operative Complaint

Both Foster Farms and American Humane demurred. 

Foster Farms argued, among other things, federal preemption, in 

that all of the causes of action against it were based on its labels, 

which had been approved by the FSIS. American Humane 

demurred as well, arguing that Hanberry was inapplicable in the 
9

absence of physical injury, and that, in any event, its certification 

was not false. 

The trial court overruled both demurrers. The court 

continued to believe that Leining had not properly alleged a cause 

of action for direct liability on the merits against Foster Farms. 

However, it concluded that Leining could pursue her cause of 

action for negligent misrepresentation against American Humane,

due to her allegation that American Humane issued its 

certification based on a careless or negligent investigation. It 

reasoned that this theory could also support relief against Foster 

Farms. 

Because the court believed the only validly pleaded theory 

was what it deemed “fraudulent licensing,” the court suggested 

American Humane and Foster Farms move for summary 

judgment, by presenting evidence that American Humane’s 

certification was actually based on a reasonable investigation and

legitimate standards. 

After answering the complaint, Foster Farms and American 

Humane together moved for summary judgment on the grounds 

suggested by the trial court. 

8. Defendants’ Motion for Summary Judgment

Defendants directed their summary judgment motion to the 

fraudulent licensing theory the trial court concluded had defeated 

their demurrers. Defendants presented the details of American 

Humane’s certification program, including that its standards were 

established by its Scientific Advisory Board, and that its audit 

process objectively determined compliance.

Defendants also argued that Leining’s entire complaint was 

barred by express preemption under the PPIA.
10

9. Leining’s Opposition

Leining opposed summary judgment on the merits, raising a 

number of issues with American Humane’s standards, its 

relationship with Foster Farms, and the procedure by which it 

conducted its audits.

As to federal preemption, Leining argued that label preapproval is not sufficient to trigger preemption. 

10. Trial Court’s Ruling

The court concluded defendants had met their initial burden 

of establishing that American Humane’s certification was 

independent, reasonable, and involved some level of expertise. 

The court then considered, and rejected, each of plaintiff’s 

counter-arguments which purportedly raised a triable issue of 

fact. Judgment was entered for defendants. Leining filed a timely 

notice of appeal. 

On appeal, the parties briefed the merits of the trial court’s 

summary judgment ruling. In the combined respondents’ brief, 

Foster Farms argued that summary judgment in its favor could be 

affirmed on the basis of federal preemption. We sought additional 

briefing on the issue which had been raised by American 

Humane’s demurrer – whether a cause of action could be asserted 

against it under Hanberry in the absence of physical injury.

DISCUSSION

We conclude we need not decide whether there are triable 

issues of fact that would defeat summary judgment. Instead, we 

first address Foster Farms’s federal preemption argument, and 

conclude the complaint against it, based on its purportedly 

misleading labels, is barred by federal law. Next, we consider 

whether a Hanberry cause of action for negligent 

misrepresentation can be asserted against a certifier of a product 
11

in the absence of physical injury. We conclude that it cannot. 

Therefore, we affirm the judgment in favor of defendants.

1. Standard of Review

Although this case proceeded to summary judgment, we find 

it unnecessary to review the trial court’s ruling on the substantial 

factual record presented by the parties. When a motion for 

summary judgment presents the argument that the plaintiff 

cannot state a cause of action, we review the issue as a matter of 

law de novo. (Aetna Health Plans of Cal., v. Yucaipa-Calimesa 

Joint Unified Sch. Dist. (1999) 72 Cal.App.4th 1175, 1186-1187.) 

We review the sufficiency of Leining’s complaint, as we would on 

demurrer or judgment on the pleadings. “ ‘We treat the demurrer 

as admitting all material facts properly pleaded, but not 

contentions, deductions or conclusions of fact or law. [Citation.] 

We also consider matters which may be judicially noticed.’

[Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

2. Federal Preemption Bars the Claims Against Foster 

Farms

Each of Leining’s direct causes of action against Foster 

Farms is based on the premise that its labels’ inclusion of the 

American Humane Certified logo was itself misleading, because 

the chicken was not treated in a manner that an objectively 

reasonable consumer would consider humane.

We conclude that these causes of action are barred by the 

doctrine of federal preemption, based on the express preemption 

clause of the PPIA. The Foster Farms labels, inclusive of the 

American Humane Certified logo which Leining alleges is 

misleading, were pre-approved by the FSIS, in accordance with 

the PPIA. 
12

Federal preemption principles derive ultimately from our 

national Constitution. “ ‘The supremacy clause of the United 

States Constitution establishes a constitutional choice-of-law rule, 

makes federal law paramount, and vests Congress with the power 

to preempt state law.’ [Citations.] Similarly, federal agencies, 

acting pursuant to authorization from Congress, can issue 

regulations that override state requirements. [Citations.] 

Preemption is foremost a question of congressional intent: did 

Congress, expressly or implicitly, seek to displace state law? 

[Citation.] [¶] We have identified several species of preemption. 

Congress may expressly preempt state law through an explicit 

preemption clause, or courts may imply preemption under the 

field, conflict, or obstacle preemption doctrines. [Citations.]” 

(Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298, 307-

308.) 

We are here concerned with express preemption. “Where 

the federal statute contains an express preemption clause, we 

must determine the substance and scope of the clause. [Citation.] 

In so doing, we assume ‘that the historic police powers of the 

States were not to be superseded by the Federal Act unless that 

was the clear and manifest purpose of Congress.’ [Citation.] And 

finally, ‘when the text of a pre-emption clause is susceptible of 

more than one plausible reading, courts ordinarily “accept the 

reading that disfavors preemption.” ’ [Citation.]” (Ass’n des 

Eleveurs de Canards et d’Oies du Quebec v. Becerra (9th Cir. 2017) 

870 F.3d 1140, 1146.)

Our preemption inquiry starts with the applicable federal 

law. The PPIA forbids the sale, or the offering for sale, of any 

poultry or poultry product “under any name or other marking or 

labeling which is false or misleading . . . .” (21 U.S.C. § 457(c).) If 
13

the Secretary of the USDA has “reason to believe” any labeling is 

false or misleading, the Secretary may direct that it not be used. 

The poultry producer may request a hearing to challenge the 

determination, which is conclusive absent a direct appeal to the 

federal Court of Appeals. (21 U.S.C. § 457(d).) Similarly, a 

poultry product is considered “misbranded” if its labeling “is false 

or misleading in any particular.” (21 U.S.C. § 453(h)(1).) Sale of 

misbranded poultry is punishable by fine or imprisonment. 

(21 U.S.C. § 461.) District courts are vested with jurisdiction to 

enforce and restrain violations of the PPIA. (21 U.S.C. § 467c.) 

All proceedings “for the enforcement or to restrain violations of 

this chapter shall be by and in the name of the United States.” 

(Ibid.) 

The preemption clause is contained in 21 United States 

Code section 467e. That section provides, in pertinent part, 

“Marking, labeling, packaging, or ingredient requirements . . . in 

addition to, or different than, those made under this [chapter]

may not be imposed by any State or Territory or the District of 

Columbia with respect to articles prepared at any official 

establishment[5] in accordance with the requirements under this 

[chapter], but any State or Territory or the District of Columbia 

may, consistent with the requirements under this [chapter]

exercise concurrent jurisdiction with the Secretary over articles 

required to be inspected under this [chapter] for the purpose of 

5 An “official establishment” is “any establishment 

determined by the Secretary at which inspection of the slaughter 

of poultry, or the processing of poultry products, is maintained 

under the authority of this [chapter].” (21 U.S.C. § 453(p).) The 

parties do not raise any legal issues related to “official 

establishment.”
14

preventing the distribution for human food purposes of any such 

articles which are adulterated or misbranded and are outside of 

such an establishment, or, in the case of imported articles which 

are not at such an establishment, after their entry into the United 

States.”

Foster Farms argues that Leining’s complaint against it is

preempted under the first clause as imposing a labeling 

requirement in addition to, or different than, those required under 

the PPIA. Leining responds that, in challenging the label as 

misleading, she is not seeking to impose a different requirement 

than the PPIA, and therefore falls under the second, concurrent 

jurisdiction, clause.

Foster Farms has the better argument. Because the labels 

were pre-approved by the FSIS, the federal government has 

determined that the labels, which include American Humane 

certification, are not misleading under the PPIA. If Leining were 

to prevail on her tort claims that the labels were nonetheless 

misleading, California courts would be imposing an additional 

requirement to those imposed by the PPIA. Numerous courts 

addressing similar contentions under the PPIA have reached this 

conclusion. (Kuenzig v. Hormel Foods Corp. (11th Cir. 2013) 

505 Fed.Appx. 937, 938 [plaintiffs’ claim that defendant misled 

consumers by listing caloric amounts and fat-free percentages 

adjacent to each other on lunch meats was preempted as imposing 

an additional requirement on labels already approved under the 

PPIA];

6 Nat’l Broiler Council v. Voss (9th Cir. 1994) 44 F.3d 740, 

6 Federal nonpublished opinions, such as Kuenzig v. Hormel 

Foods Corp., supra, 505 Fed.Appx. at page 938, may be cited by 

California state courts. (City of Hawthorne ex rel. Wohlner v. 
15

745-746 [California statute defining when wholesalers can use the 

word “fresh” on poultry imposes a requirement in addition to the 

USDA’s definition of “fresh” and is therefore preempted]; Webb v. 

Trader Joe’s Co. (S.D. Cal. 2019) 418 F.Supp.3d 524, 529, app. 

pending [plaintiff’s claim that defendant’s poultry products are 

mislabeled to the extent they claim “up to 5% retained water”

would impose a requirement in addition to the PPIA on preapproved labels and is therefore preempted]; La Vigne v. Costco 

Wholesale Corp. (S.D.N.Y. 2018) 284 F.Supp.3d 496, 508-511 

[plaintiffs’ claim that Costco canned chicken is mislabeled because 

it fails to disclose the proper percentage of broth would impose a 

requirement in addition to the PPIA-pre-approved label and is 

therefore preempted]; Shin v. Campbell Soup Company (C.D. Cal. 

2018) 2018 WL 6164264, *3 [plaintiff’s claims that the labels of 

defendant’s chicken soups are misleading when they assert “25%

less sodium” or “98% fat free” are preempted because they seek to 

impose labeling requirements different than those mandated by 

the PPIA]; Phelps v. Hormel Foods Corp. (S.D. Fla. 2017) 

244 F.Supp.3d 1312, 1314-1317 [plaintiff’s claim that “100%

Natural” and “No Preservatives” statements on labels are 

misleading would impose an additional requirement when the 

labels had been pre-approved by the FSIS]; Brower v. Campbell 

Soup Co. (S.D. Cal. 2017) 243 F.Supp.3d 1124, 1126-1127 

[plaintiff’s claim that defendant’s soup was misleadingly labeled 

as “healthy” and indicated it was certified by the American Heart 

Association without explaining that defendant had paid for that 

certification was preempted because it sought to impose additional 

H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1678, fn. 5; see 

Cal. Rules of Court, rule 8.1115.)
16

labeling requirements to a label pre-approved by the FSIS]; 

Grocery Mfrs. Ass’n v. Sorrell (D.Vt. 2015) 102 F.Supp.3d 583, 620 

[Vermont statute which prohibits labeling genetically engineered 

foods as “natural” imposes a different requirement and is 

therefore preempted to the extent it applies to food subject to the 

PPIA; related factual issues preclude dismissal]; Meaunrit v. 

ConAgra Foods Inc. (N.D. Cal. 2010) 2010 WL 2867393, *7 

[plaintiff’s claim that preparation directions on chicken pot pie 

label are inaccurate is preempted as imposing an additional claim 

on a label pre-approved by the FSIS]). 

Of particular significance is Arnold v. Kroger (Ohio App. 

2016) 45 N.E.3d 1092, in which the plaintiffs alleged that the

defendant’s “Simple Truth” brand chicken had labels which falsely 

and misleadingly claimed the “chicken was ‘raised in a humane 

environment’ and/or ‘humanely raised.’ ” (Id. at pp. 1092-1093.) 

The plaintiffs alleged, much as Leining does here, that the labels 

were misleading, because the chickens were “raised no differently 

than any other chicken mass produced by its supplier, Perdue.” 

(Id. at p. 1093.) The trial court dismissed the plaintiffs’ causes of 

action alleged under state consumer protection laws and common 

law torts because they were preempted by the PPIA. (Ibid.) The 

plaintiffs appealed, arguing that the FSIS does not “review the 

meaning of claims regarding the humane treatment of animals.” 

(Ibid.) The appellate court affirmed. The FSIS had approved the 

labels and determined that they were not false or misleading. 

Therefore, any liability the plaintiffs sought to impose based on 

their state law claims would in essence attach additional or 

different terms to the defendant’s labeling. (Id. at p. 1094.)

Against this overwhelming weight of authority, Leining 

offers no authority that a labeling claim is was not preempted 
17

under the PPIA. Instead, she argues that her claim falls under 

the concurrent jurisdiction provision of the PPIA’s preemption 

clause, by citing to cases discussing concurrent jurisdiction under 

other statutes.7 (See, e.g., Bates v. Dow Agrosciences LLC (2005) 

544 U.S. 431, 434 [the Federal Insecticide, Fungicide, and 

Rodenticide Act [FIFRA] did not preempt equivalent state labeling 

laws; only state laws that were “in addition to or different from”

the federal labeling and packaging rules were preempted]; 

Medtronic, Inc. v. Lohr (1996) 518 U.S. 470 [same test under the 

Medical Device Amendments of 1976]; Quesada v. Herb Thyme 

Farms, Inc., supra, 62 Cal.4th at pp. 308-310 [the Organic Foods 

Production Act of 1990 ‘‘permits states to adopt more stringent 

standards governing organic production”].) Yet these cases 

recognize that while state law remedies to enforce the federal 

standards are not preempted, additional labeling requirements 

are. “In sum, under our interpretation, [the preemption clause of 

7 The one PPIA case on which she relies is Association des 

Eleveurs de Canards et d’Oies du Quebec v. Becerra, supra,

870 F.3d at page 1143, which held that the PPIA did not preempt 

a California statute banning the making of foie gras by forcefeeding poultry. Because the California statute addressed the 

making and sale of foie gras, but not its labeling, PPIA label 

preemption was not at issue. In finding the California law was 

not preempted, the Ninth Circuit held that nothing in the 

challenged state statute “interferes with the USDA’s ‘authority to 

inspect poultry producers for compliance with health and sanitary 

requirements, require[ ] inspection of poultry after slaughter, 

establish[ ] labeling requirements for poultry products, [or] allow[ ] 

for withdrawal of inspections for noncompliance and the 

imposition of civil and criminal penalties for the sale of 

adulterated products.’ [Citation.]” (Id. at p. 1153.) 
18

FIFRA] retains a narrow, but still important, role. In the main, it 

pre-empts competing state labeling standards—imagine 50 

different labeling regimes prescribing the color, font size, and 

wording of warnings—that would create significant inefficiencies 

for manufacturers. The provision also pre-empts any statutory or 

common-law rule that would impose a labeling requirement that 

diverges from those set out in FIFRA and its implementing 

regulations. It does not, however, pre-empt any state rules that 

are fully consistent with federal requirements.”

8 (Bates v. Dow 

Agrosciences LLC, supra, 544 U.S. at p. 452, fn. omitted.) 

Cases interpreting the PPIA have acknowledged the 

identical distinction. While additional labeling claims are 

preempted, concurrent jurisdiction permits States to impose 

additional remedies for violations of the PPIA. (E.g., La Vigne v. 

Costco Wholesale Corp., supra, 284 F.Supp.3d at pp. 508-510; Shin 

v. Campbell Soup Company, supra, 2018 WL 6164264 at *4.) 

According to its legislative history, one of the key purposes 

of the PPIA preemption clause “was to ensure national uniformity 

in labeling.” (Nat’l Broiler Council v. Voss, supra, 44 F.3d at 

p. 744.) This purpose would be defeated if states could, via tort 

law or otherwise, impose additional labeling requirements on 

8 That is so because “a state cause of action that seeks to 

enforce a federal requirement ‘does not impose a requirement that 

is “different from, or in addition to,” requirements under federal 

law. To be sure, the threat of a damages remedy will give 

manufacturers an additional cause to comply, but the 

requirements imposed on them under state and federal law do not 

differ. [The preemption clause] does not preclude States from 

imposing different or additional remedies, but only different or 

additional requirements.’ [Citation.]” (Bates v. Dow Agrosciences 

LLC, supra, 544 U.S. at p. 448, bracketed modification ours.)
19

labels already approved under the PPIA. Leining’s causes of 

action against Foster Farms challenge Foster Farms’s federallyapproved labels and effectively seek to impose additional labeling 

requirements. Those claims are preempted by the PPIA.

Our conclusion is confirmed by the FSIS’s discussion of 

public comments in the evolution of its Labeling Guideline on 

Documentation Needed to Substantiate Animal Raising Claims 

for Label Submission. Animal welfare advocates had specifically 

requested the FSIS only approve third-party certifications from 

entities with stricter standards than conventional industry 

practices. FSIS refused. It concluded that different claims meant 

different things to different people, and that it would approve a 

label containing a third-party certification as long as consumers 

could learn from the third-party’s website the standards the 

certifier used – thereby enabling each consumer to make an 

informed decision as to whether a particular certification met the 

consumer’s expectations for the language used. Leining’s causes 

of action based on Foster Farms’s allegedly misleading use of the 

word “humane” on its labels would have us impose a particular 

meaning on “humane” when used on a label, in direct 

contravention of the FSIS’s determination that the meaning of the 

word should be left to the certifier. (84 FR 71362-71363.)

We conclude the causes of action against Foster Farms are 

federally preempted.

3. Leining Does Not State a Negligent Misrepresentation 

Cause of Action Against American Humane 

Leining alleged a single cause of action, for negligent 

misrepresentation, against American Humane. Although she 

argued it under the authority of Hanberry, supra, 276 Cal.App.2d 

680, the parties recognize two potentially applicable theories. 
20

“California courts have recognized a cause of action for negligent 

misrepresentation, i.e., a duty to communicate accurate 

information, in two circumstances. The first situation arises 

where providing false information poses a risk of and results in 

physical harm to person or property. The second situation arises 

where information is conveyed in a commercial setting for a 

business purpose.” (Friedman v. Merck & Co. (2003) 

107 Cal.App.4th 454, 477 (Friedman).) The first is the Hanberry

cause of action which Leining initially pursued. (Ibid.) The 

second, which we will discuss below, was raised by Leining in 

letter briefing on appeal, after she conceded Hanberry itself does 

not apply.

A. Hanberry Does Not Apply In the Absence of Physical 

Injury

Hanberry recognized a cause of action against the allegedly 

negligent certifier of a pair of shoes, after the plaintiff slipped and 

fell, suffering serious injuries. (Hanberry, supra, 276 Cal.App.2d 

at pp. 682-683.) Hanberry had alleged that defendant published 

“a monthly magazine known as Good Housekeeping in which 

products, including the shoes she purchased, were advertised as 

meeting the ‘Good Housekeeping’s Consumers’ Guaranty Seal.’

With respect to this seal the magazine stated: ‘This is Good 

Housekeeping’s Consumers’ Guaranty’ and ‘We satisfy ourselves 

that products advertised in Good Housekeeping are good ones and 

that the advertising claims made for them in our magazine are 

truthful.’ ” (Id. at p. 682.) The plaintiff further alleged that, 

despite the magazine’s representation to the contrary, it had made 

“no examination, test or investigation of the shoes, or a sample 

thereof, or if such tests were made they were done in a careless 

and negligent manner and that [the publisher’s] issuance of its 
21

seal and certification as to the shoes was not warranted by the 

information it possessed.” (Id. at p. 683.) On appeal from the 

sustaining of the publisher’s demurrer, the Court of Appeal 

concluded this was sufficient to state a cause of action. (Ibid.)

Leining and the trial court in this case focused on 

Hanberry’s language allowing a cause of action when a certifier 

has conducted no tests, or conducted tests negligently, before 

certifying the product. But Hanberry arose in a case of physical 

injury, and relied on a provision of the Restatement Second of 

Torts, section 311, which was limited to those circumstances. 

(Hanberry, supra, 276 Cal.App.2d at p. 685, fn. 1.) That section 

provides, “One who negligently gives false information to another 

is subject to liability for physical harm caused by action taken by 

the other in reasonable reliance upon such information . . . .” 

(Rest.2d Torts, § 311, italics added.) 

Cases subsequent to Hanberry have confirmed that this

cause of action, based on section 311 of the Restatement, requires 

physical injury. (T.H. v. Novartis Pharmaceuticals Corp. (2017) 

4 Cal.5th 145, 162-163, 190; Garcia v. Superior Court (1990) 

50 Cal.3d 728, 734-736.) Particularly relevant here is Friedman, 

supra, 107 Cal.App.4th 454, decided by a prior panel of this court. 

There, plaintiff, a strict vegan, alleged he suffered emotional 

distress when he discovered a tuberculosis test to which he had 

submitted contained animal products. He brought suit against 

the distributors of the test, who had negligently represented, upon 

inquiry, that the test did not contain animal products. (Id. at 

p. 461.) The panel concluded the Hanberry cause of action for 

negligent misrepresentation was not available, on the basis that it 

requires physical harm to person or property, and plaintiff alleged 

only emotional distress. (Id. at pp. 477, 480-481.)
22

Just like the plaintiff in Friedman, Leining asserts no 

physical injury – only the economic harm involved in the 

increased cost of the chicken she had been led to believe had been 

humanely raised. The Hanberry cause of action is not available to 

her.

B. A Cause of Action for Negligent Misrepresentation in a 

Commercial Setting is Inapplicable to Misrepresentations 

Made to the General Public, as Was the Case Here

When we sought additional briefing on the elements of a 

negligent misrepresentation claim as alleged here, Leining 

recognized that she had not alleged physical injury, and 

represented that she was no longer seeking to pursue her 

negligent misrepresentation cause of action under Hanberry and 

section 311 of the Restatement. 

Instead, Leining argues that she can pursue her negligent 

misrepresentation cause of action under the alternative theory 

discussed in Friedman – “where information is conveyed in a 

commercial setting for a business purpose.” (Friedman, supra,

107 Cal.App.4th at p. 477.) This is a cause of action under Bily v. 

Arthur Young & Co. (1992) 3 Cal.4th 370 (Bily) and section 552 of 

the Restatement.9 

Unlike the negligent misrepresentation cause of action 

recognized by Hanberry and section 311 of the Restatement, the 

9 American Humane argues that Leining has waived this 

argument because of her failure to raise it before the trial court. 

Whether Leining can state a cause of action under this theory was 

fully briefed in response to our request for additional briefing, and 

can be resolved as an issue of law on undisputed facts. We have 

discretion to address such issues (In re Marriage of Oliverez (2019) 

33 Cal.App.5th 298, 316) and exercise our discretion to do so here. 
23

cause of action under Bily and section 552 does not require 

physical injury. Perhaps for this reason, its contours are

narrower in other respects. (See Rest.2d Torts, § 311, com. a.) 

Section 552 provides, in pertinent part, that “[o]ne who, in the 

course of his business, profession or employment, or in any other 

transaction in which he has a pecuniary interest, supplies false 

information for the guidance of others in their business 

transactions, is subject to liability for pecuniary loss caused to 

them by their justifiable reliance upon the information, if he fails 

to exercise reasonable care or competence in obtaining or 

communicating the information.” 

Although facially the statement might appear to govern 

Leining’s claims, the section comes with an important limitation. 

It is restricted to a loss suffered “by the person or a limited group 

of persons for whose benefit and guidance he intends to supply the 

information or knows that the recipient intends to supply it.” 

(Rest.2d Torts, 552(2)(a).) When the California Supreme Court

adopted the Restatement rule in Bily, it was careful to restrict the 

class of potential plaintiffs to “those to whom or for whom the 

representations were made.”

10 (Bily, supra, 3 Cal.4th at p. 408

10 Liability for negligence for purely economic losses is “ ‘the 

exception, not the rule,’ ” in California. (Southern California Gas 

Leak Cases (2019) 7 Cal.5th 391, 400, 403 [holding that purely 

economic business losses sustained as a result of a natural gas 

leak were not recoverable in part because of “concerns about 

limitless liability and unending litigation”].) The primary 

exception is where the plaintiff and defendant have a special 

relationship. (Ibid.) The Bily rule is an application of this 

principle to the tort of negligent misrepresentation. (Id. at 

pp. 401-402.)
24

[independent auditor may be liable to persons who rely on an 

audit in a transaction which the auditor intended to influence].) 

Bily favorably described the Restatement rule as one that 

“attempts to define a narrow and circumscribed class of persons to 

whom or for whom representations are made. In this way, it 

recognizes commercial realities by avoiding both unlimited and 

uncertain liability for economic losses in cases of professional 

mistake and exoneration of the auditor in situations where it 

clearly intended to undertake the responsibility of influencing 

particular business transactions involving third persons. The 

Restatement rule thus appears to be a sensible and moderate 

approach to the potential consequences of imposing unlimited 

negligence liability which we have identified.”

11 (Ibid.)

Even assuming that Leining can satisfy the other elements 

of this cause of action for professional negligence in business 

advice, she cannot establish that she is a member of a “limited 

group of persons for whose benefit and guidance” (Rest.2d Torts, 

552(2)(a)) American Humane supplied its certification. Put 

simply, American Humane anticipated Foster Farms would place 

its certification on all of its chicken products in California, to 

influence any potential chicken-buyers in the general public. That

is the opposite of a limited group of persons. 

This distinction is illustrated by a pair of cases against

investment ratings agencies. In the first, the plaintiff investors 

sued rating agencies for over-rating bonds which had since become 

worthless. The ratings had been made available to the general 

11 Indeed, the Bily court cautioned that it did not necessarily 

endorse any other provisions of section 552 of Restatement beyond 

its narrow description of the potential plaintiffs. (Bily, supra, 

3 Cal.4th at p. 414.)
25

public and any person could have invested in the bonds plaintiffs

purchased. (Grassi v. Moody’s Investor’s Services (E.D. Cal. 2011) 

2011 WL 3439184, *13, recommendations adopted (E.D. Cal. 

2011) 2011 WL 13371091, aff’d (9th Cir. 2013) 540 Fed.Appx.737

(Grassi).) The district court concluded the plaintiffs could not 

prevail under California law, as they could not establish 

membership in a limited group of intended beneficiaries. (Ibid.) 

In the second case, the plaintiff investor sued the rating agencies 

for giving unjustified favorable credit ratings to structured 

investment vehicles that subsequently collapsed. The structured 

investment vehicles could not be sold to the general public, but 

only through private placements to two limited categories of 

investors (qualified institutional investors and qualified 

purchasers), which included the plaintiff. (Public Employees’

Retirement System v. Moody’s Investors Service, Inc. (2014) 

226 Cal.App.4th 643, 653.) The Court of Appeal concluded that 

the plaintiff investor could establish that the ratings agencies 

supplied their ratings “with knowledge of the existence of a welldefined type of transaction which the ratings were intended to 

influence.” (Id. at p. 669.)

Other cases agree that recommendations made to the 

general public are not actionable. (See Amann v. Clear Channel 

Communications Inc. (Ohio App. 2006) 846 N.E.2d 95, 100-101 

[misrepresentations about an investment in ads broadcast to a 

radio station’s general audience are not actionable]; Ginsburg v. 

Agora, Inc. (D. Md. 1995) 915 F.Supp. 733, 739 

[misrepresentations about an investment in a general circulation 

newsletter are not actionable]; In re Delmarva Sec. Litigation (D. 

Del. 1992) 794 F.Supp.1293, 1310 [misrepresentations about an 
26

investment in documents released to the public at large are not 

actionable].) 

Leining attempts to manufacture a narrow segment of the 

public as the target of American Humane’s certification by 

claiming it intended to guide “customers who, like Ms. Leining, 

care about animal welfare when purchasing retail goods.” The 

plaintiffs in Grassi made an analogous attempt, arguing that the 

ratings agencies had directed their ratings toward “a specific and 

limited class of investors consisting of those investors looking for 

safe investment grade corporate bonds issued from investment 

banks not likely to fail . . . .” (Grassi, supra, 2011 WL 3439184, at 

p. *3.) The district court rejected this attempt, concluding the 

challenged bond ratings were not limited in distribution but 

“available to the general public,” and any person could invest in 

the bonds. (Id. at p. *13.) The same is true here. American 

Humane’s certification was made available by Foster Farms to the 

general public, and anyone could purchase Foster Farms’s 

chicken. If a cause of action under Bily could be stated against

American Humane for certifying chicken Leining purchased in a 

standard grocery-buying transaction, Bily would swallow 

Hanberry whole, rendering the latter’s limitation to physical 

injury meaningless.

DISPOSITION

The judgment is affirmed. Foster Farms and American 

Humane shall recover their costs on appeal.

RUBIN, P. J.

WE CONCUR:

 BAKER, J. KIM, J.