A1A Burrito Works, Inc., et al v. Sysco Jacksonville, Inc.

[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 G RANT, T JOFLAT, Circuit Judges, and H UFFAKER ,∗ District
Judge.
H UFFAKER , 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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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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22-11330 Opinion of the Court 5
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 pro-
cedures 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 require-
ment.
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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 samp-
ling “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 Hand-
book 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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22-11330 Opinion of the Court 9
(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, F LA. S TAT. § 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 Restaur-
ants, the labels on the poultry packages were misleading
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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 agreed-
upon” 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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22-11330 Opinion of the Court 13
(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 acknow-
ledging 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 Act-
related 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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22-11330 Opinion of the Court 15
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 manu-
facturer 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 agreed-
upon weights at contractually agreed-upon prices. We agree. The
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18 Opinion of the Court 22-11330
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 Rest-
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22-11330 Opinion of the Court 19
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 con-
ducting 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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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, partic-
ularly 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 in-
dividual 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 Hand-
book 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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