Earlier this month, we reported that Judge Yvonne Gonzalez Rogers, United States District Court Judge for the Northern District of California, issued an order referring to FDA the question of whether and under what circumstances food products containing ingredients produced using bioengineered seed may be labeled “Natural,” “All Natural,” or “100% Natural.”  

Other courts appear to be following Judge Gonzalez Rogers' lead.  On July 18, 2013, Magistrate Judge Michael J. Watanabe in the United States District Court for the District of Colorado, issued a similar recommendation in Van Atta v. General Mills, Inc., a proposed class action alleging General Mills, Inc. mistakenly or misleadingly labels certain granola bars as “100% Natural” when in fact they are not “natural” because they contain genetically modified organisms (“GMOs”).  Like Judge Gonzalez Rogers, Judge Watanabe concluded that invocation of the primary jurisdiction doctrine was appropriate because “[t]he issues of fact in this matter are not within the conventional experience of judges, they require the exercise of administrative discretion, and they require uniformity and consistency in the regulation of the business entrusted to the particular agency.”  Accordingly, Judge Watanabe recommended denial of the pending motion to dismiss without prejudice to leave to re-file if appropriate, and staying the case pending action by the FDA.  The Court noted that Judge Gonzalez Rogers had already referred the question to the FDA, and thus there was no need for an additional referral.  The parties have 14 days from the date of service of the recommendation to file objections, which the district court will then rule on and determine if the recommendation should be adopted.

The Van Atta recommendation suggests that, following Judge Gonzalez Rogers' decision, other courts may be inclined to invoke the primary jurisdiction doctrine in cases that allege false advertising in connection with the labeling of goods as “natural,” particularly where the question is whether products containing GMOs may be labeled “natural.”   We will continue to monitor developments in this area.