We’ve got food on our mind. Last Sunday, the CBS Sunday Morning show ran its food episode, with segments about, inter alia, a little restaurant in the north of England being rated the best in the world, the Martha Stewart and Snoop Dog cooking show, and the rolled ice cream fad (focusing on Sweet Charlie’s in Philly). And tomorrow, of course, is Thanksgiving. We’re looking forward to great food on the table and loved ones around it. We wish the same for you.

Today’s case is about food, and about a legal doctrine we like almost as much as turkey and cranberry sauce: primary jurisdiction. The case is Rosillo v. Annie’s Homegrown Inc., 2017 U.S. Dist. LEXIS 190130 (N.D. Cal. Oct. 17, 2017). It is yet another case alleging misuse of the term “Natural.” Does anyone have a clear idea what that word means? Even if you do think you do know what it means, are you confident that your definition is the same as what resides in the head of the person sitting next to you? Who knows what any given set of jurors will think about this issue? We need order brought to this chaos. That order is much more likely to come from the FDA than from random litigation experiments sprinkled around the country.

In Rosillo, the plaintiffs claimed that the defendant’s salad dressings were not natural because they contained xanthan gum, a thickening agent manufactured via fermentation and treated with a byproduct of isopropyl alcohol. (One plaintiff bought her salad dressing at a Target store, while another bought hers at Whole Foods. Now that’s varied distribution.). The plaintiffs brought causes of action under California and New York consumer and false advertising laws, as well as for breach of warranty, misrepresentation, and violation of the federal Magnuson-Moss Warranty Act. The defendants moved to dismiss the actions on the merits and, in the alternative, to stay the action under the primary jurisdiction doctrine in order to permit the FDA to decide the scope of “natural.” The court issued the stay, so it did not reach the merits.

Primary jurisdiction is a “prudential” doctrine, under which a court determines that an otherwise cognizable legal claim implicates technical policy questions that would benefit by first hearing from the regulatory authority. The Rosillo defendants premised their stay request on the FDA’s establishment in November 2015 of a docket to consider the use of the term “natural” on food labels. The FDA invited comments, and extended the period for taking such comments up through mid 2016. No decision has yet issued. Meanwhile, lots and lots of cases have been filed against food manufacturers around the country (though especially in California) alleging phony “natural” labels.

The plaintiffs argued against waiting for the FDA because (1) the issue in their cases is whether reasonable consumers were being deceived, which is supposedly separate from whatever the FDA will decide, and (2) it is unclear whether the FDA will ever actually resolve the “natural” issue, especially given the FDA’s “extended silence” since the closing of the comment period. The Rosillo court disagreed with the plaintiffs.

First, the FDA’s guidance on whether and when companies can call their products “natural” will inevitably be relevant to how reasonable consumers understand the term. Indeed, the plaintiffs’ complaint cites FDA regulations and pronouncements. Second, the FDA’s food labeling regulatory framework undeniably is broad and comprehensive. Third, the Ninth Circuit Astiana case held that the meaning of “natural” is a particularly complicated issue that Congress committed to the FDA.

What about the FDA’s “extended silence”? The Rosillo court seized upon a recent Congressional appropriations bill report, which commended the FDA for wrestling with the “natural” issue and directing the FDA to report within 60 days “on the actions and timeframe for defining ‘natural’ so that there is a uniform national standard for the labeling claims and consumers and food producers have certainty about the meaning of the term.” The appropriations bill is pending, so the 60 day clock has not yet commenced. Nevertheless, the Rosillo court concluded that it is likely that the FDA will address the “natural” issue in a relatively short period of time.

The result is that the Rosillo case is stayed. The logic of the Rosillo decision should also apply to the vast array of other cases with similar allegations. Even more important, let’s hope that the FDA will for once and for all resolve the issue and make these disputes and the surrounding cacophony unnecessary. That outcome would make us thankful.