9th Cir. Denies Petition for Rehearing of Misbranding Action Against Walmart

SAN FRANCISCO — The 9th Circuit U.S. Court of Appeals has refused to revisit its ruling affirming that misbranding claims against Walmart Inc. in a dietary supplement case are preempted because the allegations were based on test methods that were different than those mandated under the Food, Drug and Cosmetic Act.

In a May 11 opinion, the panel majority explained that the test methodology used by plaintiffs’ expert was neither an Association of Official Agricultural Chemists (AOAC) method, nor had it been validated. Therefore, the claims are preempted by federal law, the majority concluded.

The full appellate court denied plaintiffs’ …


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