In Brazil v. Dole Food Company, 2013 WL 1209955 (C.D. Cal. Mar. 25, 2013), the U.S. District Court for the Central District of California granted defendant Dole Food Company’s motion to dismiss plaintiffs’ class action claims alleging Dole’s product labeling was “misbranded” based on failure to satisfy pleading standards. But before doing so, the court addressed and rejected Dole’s argument that the case should be dismissed or stayed under the doctrine of primary jurisdiction. That point is noteworthy because it contrasts with another California district court’s recent decision, Astiana v. Hain Celestial Group, dismissing another California false advertising claim under the primary jurisdiction doctrine. 2012 WL 5873585 (N.D. Cal. Nov. 19, 2012).
Plaintiff alleged that certain Dole food products were improperly labeled as “all natural, fresh, antioxidant, [and] sugar free” in violation of state and federal law. Dole raised several grounds for dismissal, including the primary jurisdiction doctrine, “under which a … claim [that] implicates technical and policy questions should be addressed in the first instance by the agency with regulatory authority over the relevant industry...” 2013 WL 1209955 at *9. Dole relied principally upon Astiana, in which the court deferred to FDA to determine for the first time whether promoting a cosmetic as “natural” violated the FDCA. But the Dole court distinguished Astiana because FDA had already established regulations addressing the alleged advertising violations at issue concerning Dole’s products. The Dole court further found primary jurisdiction inapplicable because the case is “far less about science than it is about whether a label is misleading” and thus did not raise a “particularly complicated issue that Congress has committed to [the FDA].” Id. at *10.
The Dole case reinforces that a key to prevailing on a primary jurisdiction argument is showing not only that a case involves an issue which is subject to federal regulation, but one that implicates a novel and/or particularly complex issue that Congress has committed to a regulatory agency.