Last week, a New York federal court dismissed numerous claims against Frito-Lay North America, Inc. in a multidistrict class action over “all natural” labels on Frito-Lay products such as Tostitos, SunChips and Fritos Bean Dip that allegedly contain genetically modified organisms (GMOs).  In re Frito-Lay North America, Inc. All Natural Litigation, 12-MD-2413 (RRM)(RLM). 

U.S. District Judge Roslynn Mauskopf threw out warranty claims under the federal Magnuson-Moss Warranty Act and Florida and New York law as well as intentional misrepresentation claims under Florida, New York and California statutes. The court refused to dismiss plaintiffs’ claims under California’s Unfair Competition and False Advertising laws as well as claims under the Florida Deceptive and Unfair Practices Act. The court denied Frito Lay’s bid to dismiss or stay the action under the primary jurisdiction doctrine, rejecting the recent trend by other courts to refer the issue to the FDA of whether products containing GMOs can be labeled “all natural.”  See our prior posts here and here and here.

''“Against this regulatory backdrop, Frito-Lay’s request to dismiss, or stay, this action for the FDA to address whether foods containing bioengineered ingredients may be labeled ‘natural’ is unwarranted. First, and foremost, the primary jurisdiction doctrine does not apply when ‘the issue at stake is legal in nature and lies within the traditional realm of judicial competence.’ . . .‘This case is far less about science than it is about whether a label is misleading,’ and the reasonable-consumer inquiry upon which some of the claims in this case depends is one to which courts are eminently well suited, even well versed.”

Judge Mauskopf expressed skepticism that the FDA would act in a timely manner if at all:

“Here too, the agency would need far more than six months to define the term ‘natural,’ or pass on whether foods containing bioengineered ingredients may be labeled as ‘natural,’ and would likely open that deliberation to public notice and comment. In an analogous situation, the FDA took nine years to define the requirements a manufacturer must meet before it can label a food ‘gluten-free.’”  

The court also rejected Frito-Lay’s argument that the named plaintiffs lacked Article III standing because their claims included products they had not purchased.  The court held that each individual plaintiff had alleged sufficient facts demonstrating standing and that the issue of whether they could assert claims on behalf of purchasers of products that plaintiffs themselves had not bought was an issue for class certification.  See our prior posts here and here discussing this issue.