A federal court in California has denied Safeway, Inc.’s motion to dismiss or stay proceedings alleging that it has an obligation to use information in its loyalty card customer database to provide e-mail notice about produce recalls ordered by the Food and Drug Administration (FDA) or U.S. Department of Agriculture. Hensley-Maclean v. Safeway, Inc., No. 11-1230 (U.S. Dist. Ct., N.D. Cal., San Francisco Div., order entered June 13, 2011). Additional details about the case, which was first filed in state court, appear in Issue 380 of this Update.

The grocery company argued that the “primary jurisdiction doctrine” or “equitable abstention” required the court to dismiss or stay the litigation “until and unless regulatory agencies have had the opportunity to consider and adopt appropriate rules governing the obligations a grocery store has with respect to providing its customers notice of such recalls.” According to Safeway, the Food Safety Modernization Act requires FDA to develop notice guidelines by January 2012.

The court rejected this argument because “there is no indication that anything the FDA may choose to do or not do will resolve the claims plaintiffs are making in this action, in whole or in part.” The court also noted, “If the FDA were expressly to consider, but ultimately reject, imposing a federal requirement for giving notice in the manner plaintiffs are seeking, it might strengthen Safeway’s policy arguments against the necessity for, or value of, email notice, but it would not be dispositive of any of the claims in this action.”

As for the alternative equitable abstention issue, the court states that it “turns on the same flawed notion that plaintiffs’ claims are best addressed in the first instance by the pending FDA proceedings. While Safeway also suggests in passing that state administrative agencies are equipped to address the issue as well, it has not shown that the possibility of pursuing a state-level administrative remedy warrants abstention in these circumstances.”