We have previously posted about lawsuits seeking injunctive relief and damages arising from food manufacturers’ use of terms like “natural” on labels and in advertising (see, for example, here and here). These cases are usually putative class actions that allege particular food products have been misbranded by the manufacturers. Even though such claims would appear to be preempted by the Federal Food, Drug and Cosmetic Act (“FDCA”), which regulates food safety and labeling and prohibits private enforcement, plaintiffs have been able to bring their claims by alleging violations of state laws that parallel the FDCA requirements.
Plaintiffs have had the most success in California where the state Unfair Competition Law permits causes of action for false, or deceptive, labeling and the courts have been fairly receptive to putative classes. Indeed, the Ninth Circuit previously noted that, as a general matter, deceptive labeling claims should not be decided at the motion to dismiss stage. See Williams v. Gerber Products, 552 F.3d 934 (9th Cir. 2009). But the Ninth Circuit’s decision in Pom Wonderful LLC v. Coca–Cola Co., 679 F.3d 1170 (2012), made California less friendly to would-be plaintiffs.
In Pom Wonderful, plaintiff Pom Wonderful had alleged that its competitor, defendant Coca-Cola Co., had violated California state law as well as the Lanham Act by using the word “pomegranate” and a picture of a pomegranate on the label of a beverage that contained less than 1% pomegranate juice. The district court granted summary judgment in favor of Coca-Cola Co. and the Ninth Circuit affirmed. The Ninth Circuit held that Pom Wonderful’s claims were preempted because the FDCA comprehensively regulates food and beverage labeling and the FDA could act if it determined that Coca-Cola Co.’s labeling did not comply with its regulations. Thus, the Ninth Circuit deferred to the FDA’s decision whether to act or not with respect to the label in question.
Not surprisingly, though, plaintiffs have not given up and are trying to keep their cases alive in California. And they recently made some headway steering away from Pom Wonderful in Janney v. General Mills, No. C 12-3919 (N.D. Cal. 2013). The plaintiffs in Janney are a putative consumer class alleging that General Mills’ Nature Valley brand food products’ “natural” labels are deceptive because the products contain high fructose corn syrup and other processed sweeteners. The plaintiffs’ complaint includes various counts of California law violations as well as unjust enrichment. According to the plaintiffs, “natural” labels should only be applied to products that contain no artificial or synthetic ingredients and consist of ingredients that are only minimally processed.
The district court recently issued an opinion denying General Mills’ motion to dismiss based on the primary jurisdiction doctrine. Under this doctrine, courts may determine that certain decisions should be made by the relevant federal agency (as opposed to the courts). General Mills argued that the FDA should determine the meaning and proper use of the label “natural.” Although finding that the “question is a close one,” the court disagreed. The court concluded that the deceptive labeling claims should not be dismissed because “the FDA has signaled a relative lack of interest” with respect to the use of “natural” in food and beverage labels. According to the opinion, the FDA’s failure to define “natural” in any regulation or formal policy statement is telling. The FDA has only issued “informal” guidance stating that “natural” means that “nothing artificial or synthetic [ ] has been included in, or has been added to, a food that would not normally be expected to be in the food.” Although the FDA has issued numerous warning letters to food and beverage manufacturers for uses in contravention of this definition, the court determined that the FDA “has taken little action against companies who have used the term ‘natural’ in labels for food products that contain various preservatives.”
The court’s decision is surprising given that it “agree[d] that the Syntek factors [for the primary jurisdiction doctrine] favor the resolution of this issue by the FDA.” Moreover, the court’s decision is inconsistent with the Ninth Circuit’s Pom Wonderful decision. The district court itself acknowledged that the Ninth Circuit in Pom Wonderful had “found that when a plaintiff’s cause of action requires a court to decide an issue committed to the FDA’s expertise, dismissal in deference to that agency is the proper result – even if no formal regulation has been adopted.” (emphasis added). Nevertheless, the court did not follow the Ninth Circuit’s lead and found “little reason to stay or dismiss the case to allow the FDA the opportunity to take action.”
The issue will likely eventually be before the Ninth Circuit, but in the meantime plaintiffs will surely rely on the district court’s opinion in Janney v. General Mills in an effort to sidestep Pom Wonderful and support their false labeling claims.