Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHELSEA GARLAND et al., Case No. 25-cv-03437-BAS-SBC 12 Plaintiffs, ORDER DENYING DEFENDANTS’ 13 v. MOTION FOR INTERLOCUTORY APPEAL AND TO STAY ACTION 14 MEAD JOHNSON & COMPANY, LLC, (ECF No. 20) et al., 15 Defendants. 16 17 Pending before the Court is a motion for interlocutory appeal and to stay action 18 submitted by Defendants Mead Johnson & Co., LLC; Mead Johnson Nutrition Co.; and 19 Reckitt Benckiser LLC (“Motion”). (ECF No. 20.) For the reasons below, the Court 20 DENIES Defendants’ Motion. (Id.) 21 I. BACKGROUND 22 On June 1, 2026, the Court denied Defendants’ motion to dismiss Plaintiffs’ 23 complaint on grounds that Plaintiffs’ California state law claims to enforce Food and Drug 24 Administration (“FDA”) regulations are preempted under the Food Drug and Cosmetic 25 Act, 21 U.S.C. §§ 301, et seq. (“FDCA”) (ECF No. 16.) Defendants now move for 26 interlocutory appeal of the Court’s decision. (ECF No. 20.) 27 The Court finds this motion suitable for determination on the papers submitted and 28 without oral argument. See Fed. R. Civ. P. 78(b); CivLR 7.1(d)(1). 1 II. LEGAL STANDARD 2 The Court has the authority to certify an order for immediate interlocutory appeal 3 under 28 U.S.C. § 1292(b) where (1) the decision “involves a controlling question of law,” 4 (2) “as to which there is substantial ground for difference of opinion,” and (3) “an 5 immediate appeal from the order may materially advance the ultimate termination of the 6 litigation.” 7 The Ninth Circuit cautions that district courts should only certify an interlocutory 8 appeal in “rare circumstances” because “Section 1292(b) is a departure from the normal 9 rule that only final judgments are appealable, and therefore must be construed narrowly.” 10 James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002). Thus, 11 certification pursuant to Section 1292(b) is appropriate “only in exceptional situations.” In 12 re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982) (citing U.S. Rubber Co. v. 13 Wright, 359 F.2d 784, 785 (9th Cir. 1966) (per curiam); and Milbert v. Bison Labs., 260 14 F.2d 431, 433–35 (3d Cir. 1958)). The party seeking the interlocutory appeal bears the 15 burden of establishing that all three of the requirements for certification are met. Couch v. 16 Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). 17 III. ANALYSIS 18 The Court agrees that the issue of whether Plaintiffs’ California Sherman Law claims 19 to enforce FDA regulations at issue are preempted is a controlling question of law that 20 would materially affect the outcome of this litigation. See In re Cement Antitrust Litig., 21 673 F.2d at 1026 (In order for a question to be “controlling,” the resolution of the issue on 22 appeal could materially affect the outcome of litigation in the district court). The Court 23 also agrees with Defendants that an immediate appeal may materially advance the ultimate 24 termination of the litigation—since it would effectively end the current litigation. 25 However, the Court disagrees that there is a substantial ground for difference of 26 opinion on controlling law. “[S]ubstantial ground for difference of opinion exists where 27 ‘the circuits are in dispute on the question and the court of appeals of the circuit has not 28 spoken on the point, if complicated questions arise under foreign law, or if novel and 1 difficult questions of first impression are presented.’ ” Couch, 611 F.3d at 633 (citing 3 2 Federal Procedure, Lawyers Edition § 3:212 (2010) (footnotes omitted)). “[J]ust because 3 a court is the first to rule on a particular question or just because counsel contends that one 4 precedent rather than another is controlling does not mean there is such a substantial 5 difference of opinion as will support an interlocutory appeal.” Id. 6 Here, the Ninth Circuit, in Davidson v. Sprout Foods, Inc., 106 F.4th 842 (9th Cir. 7 2024), has ruled upon the issue of whether § 110100(a) of the California Health and Safety 8 Code claims to enforce 21 C.F.R. § 101.13(b)(3) prohibitions on nutrient labeling for 9 children under the age of two are preempted. Though Defendants cite cases where federal 10 district and appellate courts have denied private state rights of action to enforce federal 11 Food and Drug Administration regulations (see ECF No. 20-1 at 13:11–16:18), the only 12 binding Ninth Circuit opinion regarding the particular state law (Cal. Health & Safety Code 13 § 110100(a)) and particular regulation (21 C.F.R. § 101.13(b)(3)) explicitly disputed in this 14 action is Davidson, 106 F.4th at 846. See Robledo v. Bautista, No. 15 CV1905349PHXJATDMF, 2022 WL 2788825, at *2 (D. Ariz. July 15, 2022) (“Just 16 because a court could have applied settled law differently does not mean that a substantial 17 ground for difference of opinion exists”); Spears v. Wash. Mut. Bank, 2010 WL 54755, at 18 *3 (N.D. Cal. Jan. 8, 2010) (“[T]he mere fact that one district court came to a different 19 conclusion on the same issue is insufficient to establish a substantial ground for difference 20 of opinion.”). 21 Further, regarding the issue of whether the date of a statute is “dispositive” for 22 preemption, Defendants cite the concurrence in Bubak v. Golo, LLC, No. 24-492, 2025 WL 23 2860044, at *4 (9th Cir. Oct. 9, 2025). (ECF No. 20-1 at 16:19–19:25.) Contrary to 24 Defendants’ assertions, the Bubak concurrence explicitly reasons that state laws predating 25 the FDCA can be grounds for finding they are independent. See Bubak, 2025 WL 2860044, 26 at *3 (“These state laws predate, and thus exist independently of, the federal law at issue). 27 The fact that other courts have reasoned that state law claims based in tort can also be found 28 to “exist independently” of the FDCA does not conflict with finding that those claims exist | ||}independently of the FDCA on the basis they predate its enactment. See Nexus Pharms., 2 v. Cent. Admixture Pharmacy Servs., Inc., 48 F.Ath 1040, 1048-50 (9th Cir. 2022); 3 || Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 346-47 (2001). Put differently, 4 || Defendants do not demonstrate that there is a live dispute within the Ninth Circuit. Thus, 5 ||the Court does not find there is a substantial ground for difference of opinion on this issue. 6 Lastly, even though the Court previously dismissed Plaintiffs’ claims “sounding in 7 || fraud” on the basis that they have failed to plead fraud under Rule 9(b), see Garland v. 8 || Mead Johnson & Co., LLC, No. 24-CV-1168-BAS-SBC, 2025 WL 1908401, at *4 (S.D. 9 July 10, 2025), whether claims meet the pleading standards in Rule 9(b) 1s distinct 10 || from the narrow legal issue of whether Plaintiffs’ claims are from private enforcement 11 || under the FDCA. Thus, the Court is unpersuaded by Defendants’ arguments that the issue 12 || of Plaintiffs adequately pleading fraud under Rule 9(b) should affect whether the present 13 matter is appropriate for interlocutory appeal. (See ECF No. 20-1 at 21:11-14.) 14 Since Defendants have not presented a “substantial ground for difference of 15 opinion,” Defendants have not satisfied the three elements of demonstrating the necessity 16 interlocutory appeal. Couch, 611 F.3d at 633; In re Cement Antitrust Litig., 673 F.2d at 17 (Certification pursuant to Section 1292(b) is appropriate “only in exceptional 18 || situations.”). 19 Furthermore, since the Court denies Defendants’ request for interlocutory appeal, 20 || the Court also denies Defendants’ request to stay the present action. (See ECF No. 20-1 at 21 22:8-20.) 22 CONCLUSION 23 For the reasons above, the Court DENIES Defendants’ Motion. (ECF No. 20.) 24 IT IS SO ORDERED. 25 26 || DATED: July 6, 2026 pallu Bahar □□ 47 H n. Cynthia Bashant, Chief Judge United States District Court 28 A.