California federal courts, particularly those in the Northern District, have become a magnet for food labeling litigation—in particular, cases challenging “All Natural” labels on products containing genetically modified organisms (GMOs).  The FDA, which has regulatory authority over food labeling, has not addressed whether foods containing GMOs may be labeled “natural,” or whether the existence of GMOs would contravene the agency’s guidance establising that “natural” means nothing “unnatural or synthetic” has been included.  U.S. District Judge Yvonne Gonzalez Rogers may seek to change that in Cox v. Gruma Corp. (Case No. 12-CV-6502 YGR).

Earlier this month, Judge Gonzalez Rogers issued a tentative decision in the Cox matter, indicating that she is inclined to stay the case for a period of six months while the issue is referred to the FDA for a “determination of whether products containing GMO or bioengineered ingredients may properly be labeled ‘Natural’ or ‘All Natural.’”  The court explained that plaintiffs’ claims have identified a “gaping hole in the current regulatory landscape” and that the FDA has “unquestionably and squarely” been given the authority to address the issue.  Citing the Ninth Circuit’s recent decision in Pom Wonderful, LLC v. Coca-Cola Co. 679 F.3d 1170 (9th Cir. 2012), [see our prior discussions here and here] the court (tentatively) concluded that “[u]nder these circumstances, deference to the FDA’s regulatory authority is the appropriate course.”   

Not surprisingly, the plaintiffs have objected to any stay, arguing that the FDA has previously declined to define “all natural” and there is no reason to expect it will respond differently now.  Whether the FDA will continue to dodge the issue is hard to predict.  But the recent surge in “all natural” claims, along with growing public concern over the use of GMOs, may pressure the agency to finally weigh in.  Judge Gonzalez Rogers has ordered further briefing on the appropriateness of a stay; this briefing will take place over the next several weeks.  Whether the court will adopt its tentative and actually stay the matter has yet to be seen.  Check back with us for further updates.