In nearly identical orders in Figy v. Amy’s Kitchen, Inc., --- F. Supp. 2d ---- 2014 WL 1379915 (N.D. Cal. Apr. 9, 2014), and Swearingen v. Santa Cruz Natural Inc., 2014 WL 1339775 (N.D. Cal. Apr. 2, 2014), Judge Susan Illston of the U.S. District Court for the Northern District of California granted the defendants’ motions to dismiss pursuant to the doctrine of primary jurisdiction, a judicial doctrine favoring deference to an administrative agency’s authority to decide certain issues of first impression.
In each case, plaintiffs brought a putative consumer class action complaint against a manufacturer for its use of the term “organic evaporated cane juice” (ECJ) rather than the common term “sugar” on its products’ labels in order to make its products appear healthier to consumers. Plaintiffs alleged that the use of the term ECJ violates Food and Drug Administration (FDA) regulations, which require food labels to reflect the common or usual name of an ingredient, and that defendants’ failure to comply with these FDA regulations violates California’s Sherman Law. Plaintiffs brought causes of action under various California consumer protection statutes, including its Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act.
The court determined that all of plaintiffs’ claims “hinge[d] on plaintiffs’ contention that ECJ is not the common or usual name for the ingredient at issue” and “[t]herefore, the issues raised by plaintiffs’ complaint ‘fit [ ] squarely within’ Congress’ delegation of authority to the FDA.” Swearingen, 2014 WL 1339775, at *2; Figy, 2014 WL 1379915, at *2. The court held that the determination of whether the term ECJ violates FDA regulations was best to left to the FDA, particularly in light of the agency’s March 5, 2014 notice in the Federal Register announcing that it was actively reconsidering its own draft guidance concerning use of the term ECJ. The court noted that deferring to the FDA will allow the court to benefit from the agency’s expertise on food labeling, promote judicial efficiency, ensure uniformity in the administration of the issue, and obviate the risk of a judicial decision in conflict with the FDA’s expert decision on the issue. Further, the court determined that applying the doctrine of primary jurisdiction would not deny plaintiffs the opportunity to seek relief because they can participate in the FDA’s rulemaking proceedings by submitting comments. Accordingly, the court granted the defendants’ motions to dismiss without prejudice pursuant to the doctrine of primary jurisdiction.
Although these cases follow Reese v. Odwalla, Inc., --- F. Supp. 2d ----, 2014 WL 1244940 (N.D. Cal. Mar. 25, 2014), which involved the use of the term ECJ and applied the doctrine of primary jurisdiction, they conflict with Swearingen v. Amazon Preservation Partners, Inc., 2014 WL 1100944 (N.D. Cal. Mar. 18, 2014), in which the district court declined to apply the doctrine of primary jurisdiction in a case involving the use of the term ECJ.
Given these divergent opinions in the Northern District of California, the Ninth Circuit could potentially address this primary jurisdiction issue in the near future. In the interim, defendants should continue to be mindful of the doctrine of primary jurisdiction as a potential tool for challenging product liability suits involving a broad range of FDA regulated products.