When faced with false advertising class actions based on the use of the word “natural,” the food industry had found an ally in the Food and Drug Administration (FDA) and the Ninth Circuit. What is known as the primary jurisdiction doctrine states that the FDA, not a court, decides what “natural” means and whether a company has a “natural” product. The FDA has declined to formally define what “natural” means in advertising, allowing food defendants to occasionally get these class actions dismissed at the pleadings stage. See, e.g., Pom Wonderful LLC, v. Coca-Cola Co., 679 F.3d 1170, 1177 (9th Cir. 2012) (“If the FDA believes that more should be done to prevent deception, or that [a manufacturer’s] labels mislead consumers, it can act.”).
However, it appears that California courts might have reversed course. In three recent decisions from the Northern District of California the court has declined to dismiss “natural” claims on primary jurisdiction grounds. See, e.g., Janney v. Gen. Mills, __ F. Supp. 2d __, 2013 WL 1962360 (N.D. Cal. May 10, 2013); Brazil v. Dole Food Co. __ F. Supp. 2d __, 2013 WL 1209955 (N.D. Cal. March 25, 2013); Jones v. Con-Agra Foods, Inc., __ F. Supp. 2d __, 2012 WL 6569393 (N.D. Cal. Dec. 17, 2012).
In Janney, the most recent of these cases, plaintiff alleged that the packaging and advertising of certain Nature Valley products was deceptive because the products were highly processed and included high fructose corn syrup, high maltose corn syrup, and/or malodextrin – even though they are labeled as being “natural.” General Mills argued that the court should dismiss the entire action because any decision regarding the meaning and use of the term “natural” should be made by FDA. Finding that the primary jurisdiction doctrine was “prudential” as opposed to “jurisdictional,” the court exercised its discretion and decided it need not dismiss the case for FDA determination of the meaning of the word “natural.” Specifically, the court held that even though “natural” is not formally defined by FDA, FDA has issued informal guidance on its meaning, and has expressly declined to take further action to define the term when asked on numerous occasions by consumer groups and others. For this reason, the Janney court determined that a dismissal or stay would have no effect on the FDA’s position regarding the meaning of “natural.”
While the primary jurisdiction doctrine was once a powerful weapon in a food defendant’s arsenal, it appears that this is no longer as true. Food defendants might still be able to get these cases dismissed on other grounds (e.g. failure to plead fraud with particularity or lack of reliance), but they should expect to see an increasing number of courts decline to dismiss “natural” class actions on primary jurisdiction grounds.