Judges Vary in Deference to FDA’s “Primary Jurisdiction” Over “All Natural” Food Labeling Claims

Contributed by Lisa Sokolowski

The rise of lawsuits relating to “all natural” food labeling has brought with it an often conflicting approach to the “primary jurisdiction doctrine,” which permits a court to remove an issue from its courtroom when court action might interfere with a federal agency’s statutory authority.

Just last year, U.S. District Court Judge Susan R. Nelson applied the primary jurisdiction doctrine to dismiss a plaintiff’s case relating to the advertising and selling of “Yoplait Greek” yogurt.  See Taradejna v. General Mills, Inc., 909 F. Supp. 2d 1128 (D. Minn. 2012). In the opinion, Judge Nelson explained the primary jurisdiction doctrine:

Primary jurisdiction is a common-law doctrine that is utilized to coordinate judicial and administrative decision making. Although there is no fixed formula for deciding whether to apply the doctrine, the doctrine applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.  Agency expertise is the most common reason that courts apply the doctrine of primary jurisdiction. In addition, courts apply the doctrine to promote uniformity and consistency within the particular field of regulation. . . . When the primary jurisdiction doctrine applies, the district court has discretion either to stay the case and retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice.  Id. at 1134 (internal quotations and citations omitted).

In Taradejna, Judge Nelson ultimately found that the ambiguity and murky regulatory history surrounding the FDA’s “standard of identity” for yogurt meant that the U.S. Food and Drug Administration (“FDA”) should decide whether defendants’ actions violated the law.

In three more recent cases—two of which also involved claims against companies that advertise and sell yogurt—judges again applied the primary jurisdiction doctrine. The first, Janney v. General Mills, 2013 WL 1962360 (N.D. Cal. May 10, 2013), involved a putative class claim that General Mills’ “all natural” labeling of its Nature Valley products was deceptive under California law.  The court, noting that the FDA had signaled a “relative lack of interest” in governing the use of “natural” as applied to food products, ruled that the FDA did not have primary jurisdiction to address the allegations.  See here for our prior discussion of this case.

On July 12, 2013, another judge in the same court also decided that class claims alleging Chobani yogurt was mislabeled “all natural” did not merit dismissal under the primary jurisdiction doctrine. See Kane v. Chobani, Inc., No. 5:12-cv-02425 (N.D. Cal. July 12, 2013). The same court came to the opposite conclusion in Hood v. Wholesoy & Co., No. 4:12-cv-05550 (N.D. Cal. July 12, 2013), and dismissed a putative class action alleging that the defendant falsely marketed its soy yogurt. This time, the court found that “[rendering a decision based on what this court believes the FDA might eventually decide on either of these issues would usurp the FDA’s interpretive authority.”

Though these judges took different approaches to the FDA’s ambiguity with respect to regulating “all natural” claims, at least one fact is clear: the primary jurisdiction doctrine is an extremely useful tool for defendants.