A court recently dismissed a putative class action alleging that General Mills and Yoplait ("Defendants") violated the Minnesota Prevention of Consumer Fraud Act, the Minnesota Unlawful Trade Practices Act, and the Minnesota Uniform Deceptive Trade Practices Act by advertising and selling “Yoplait Greek" yogurt that was “neither yogurt nor Greek, as those terms are used in the industry and as defined by regulation.” According to Plaintiff, instead of straining its "Greek" yogurt naturally to obtain Greek yogurt's traditional thick and creamy texture, and higher protein content, General Mills added Milk Protein Concentrate (“MPC”) to obtain the same result. According to Plaintiff, because FDA's "standard of identity" that defined "yogurt" did not specifically permit the addition of MPC to yogurt, Defendants' Greek yogurt was mislabeled.

Defendants, on the other hand, argued that because FDA had not forbidden the addition of MPC to yogurt, its use was not forbidden, and its "Greek yogurt" was not mislabeled. Accordingly, Defendants sought the dismissal of Plaintiff's claims on a number of grounds, including on the ground that the doctrine of primary jurisdiction barred Plaintiff's claims.

As noted by the Court, "[p]rimary jurisdiction is a common-law doctrine that is utilized to coordinate judicial and administrative decision making" and "comes into play whenever enforcement of [a claim filed in court] requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body."

In dismissing the Plaintiff's Complaint without prejudice under the primary jurisdiction doctrine, the Court held that “[t]he underlying issue here is whether MPC is a proper, permitted ingredient in yogurt," and that "[t]he resolution of this question falls squarely within the competence and expertise of the FDA, pursuant to the authority granted to the Agency by Congress.”

See Taradejan v. General Mills, Inc., Civil No. 12-993 (SRN/LIB) (D. Minn. filed Dec. 10, 2012) (Docket No. 33).