Are judges in the Northern District of California losing their taste for food labeling litigation?  In a recent win for Wholesoy & Co., Judge Yvonne Gonzalez Rogers dismissed plaintiff’s “misbranding” claims concerning the terms “evaporated cane juice” and “soy yogurt” under the doctrine of primary jurisdiction. See Hood v. Wholesoy & Co., No. 12-cv-5550-YGR, 2013 WL 3553979 (N.D. Cal. July 12, 2013). Citing Pom Wonderful, LLC v. Coca-Cola Co., 679 F.3d 1170, 1178 (9th Cir. 2012), a Ninth Circuit food labeling case supporting deference to the FDA, the Court concluded:

“Under these circumstances, based upon the record presented, the Court finds it is appropriate to defer to the authority and expertise of the FDA to say what the appropriate rules should be with respect to ‘soy yogurt’ and ‘evaporated cane juice.’  Rendering a decision based on what this Court believes the FDA might eventually decide on either of these issues ‘would usurp the FDA’s interpretive authority.’”

Plaintiff alleged that Wholesoy’s use of “evaporated cane juice” on its labels is misleading because the ingredient should be listed as simply “sugar” or “syrup.” The FDA has in fact issued draft guidance stating that sweeteners derived from sugar cane syrup should not be listed by names suggesting they are juice, and it has sent warning letters to companies using the term “evaporated cane juice.”  Importantly, however, the FDA also stated that the draft guidance does not establish “legally enforceable responsibilities,” but instead describes “the Agency’s current thinking on a topic and should be viewed only as [a] recommendation[].” Judge Gonzalez Rogers found that “[a]t a minimum, this indicates to the Court that FDA’s position is not settled. So far as it appears, FDA has not yet set a uniform enforcement standard.”

Plaintiff also alleged that Wholesoy’s products were wrongfully called “soy yogurt” because they do not contain any form of dairy milk and thus do not comply with FDA’s Standard of Identity for yogurt. Plaintiff again relied on FDA warning letters faulting companies for labeling products as “milk,” “yogurt,” or “cheese,” while failing to meet the applicable Standard of Identity. The Court noted, however, that the FDA has not spoken at all as to whether “soy yogurt” should be subject to the same standards as dairy yogurt. As such, the Court would have no clear standard to apply.

While a strong win for the defense, this ruling adds to the growing inconsistency in food labeling rulings across the country. Recently, for example, Judge Koh declined to apply the primary jurisdiction doctrine to “evaporated cane juice” claims brought by the same plaintiff’s counsel as in HoodSee Kane v. Chobani, Inc., No. 12-CV-02425-LHK, 2013 WL 3776172 (N.D. Cal. July 15, 2013). Whether primary jurisdiction gains popularity as a way to avoid further inconsistencies remains to be seen.