A California federal judge on May 23, 2014, certified a class of California consumers who claimed Blue Diamond Growers' almond milk product labels misleadingly referred to sugar as "evaporated cane juice." Judge Lucy Koh granted plaintiff Chris Werdebaugh's certification motion on behalf of consumers in California who have purchased the allegedly mislabeled products since May 2008, according to the order. She denied his request to certify a nationwide class, finding the he did not show that California law would prevail over that of other state consumer protection laws.

Judge Koh also ruled that Werdebaugh has standing to bring his claims, saying he has showed enough proof that he decided to purchase the almond milk products based on California-based Blue Diamond's alleged mislabeling of its products as containing evaporated cane juice, and as being "all natural."

Last October, Blue Diamond sought unsuccessfully to dismiss the suit based on the doctrine of primary jurisdiction. See Werdebaugh v. Blue Diamond Growers, 2013 WL 5487236 (N.D. Cal. Oct. 2, 2013). Judge Koh denied the motion to dismiss, holding that the FDA had already spoken on the issue of evaporated cane juice in a 2009 draft guidance document and said that this is not a “particularly complicated issue that Congress has committed to a regulatory agency.” However, on March 5, 2014, through an official notice in the Federal Register, the FDA acknowledged that it has not issued any final guidance on evaporated cane juice and stated that it “intend[s] to revise the draft guidance, if appropriate, and issue it in final form.” Since then, several courts have granted motions to dismiss or stayed cases based on the doctrine of primary jurisdiction pointing to the FDA’s March 5 notice. These cases include: Reese v. Odwalla, Inc., 2014 WL 124494 (N.D. Cal. Mar. 25, 2014) (dismissed without prejudice, citing the March 5 notice, and noted “the issue of proper declaration of ingredients on food labels is one as to which Congress vested the FDA with comprehensive regulatory authority.”);Swearingen v. Santa Cruz, 2014 WL 1339775 (N.D. Cal. Apr. 2, 2014) (dismissed without prejudice, noting that “applying the doctrine of primary jurisdiction allows the Court to benefit from the FDA’s expertise on food labeling and will ensure uniformity in administration of the regulations”); Figy v. Amy’s Kitchen, Inc., 2014 WL 1379915 (N.D. Cal. Apr. 9, 2014) (dismissed without prejudice on primary jurisdiction grounds, and noted that “deferring to the FDA will allow for uniformity in administration on this issue”); Figy v. Lifeway Foods, 2014 WL 1779251 (N.D. Cal. May 5, 2014) (stayed on primary jurisdiction grounds, “pending the FDA’s resolution of its ECJ guidance as contemplated in the 2014 FDA Notice”); Greenfield v. Yucatan Foods, L.P., 2014 WL 1891140 (S.D. Fla. May 7, 2014) (dismissed without prejudice, citingOdwalla for the proposition that the “FDA has revived its review of the [evaporated cane juice] issue.”);Avila v. Redwood Hill Farm and Creamery, Inc., 2014 WL 2090045 (N.D. Cal. May 19, 2014) (court noted that, in the past, it had found that the doctrine of primary jurisdiction did not bar evaporated cane juice claims but, “in light of the FDA’s March 5, 2014, notice in the Federal Register,” the court held that it was appropriate to dismiss without prejudice on the ground of primary jurisdiction); Swearingen v. Yucatan Foods, L.P., 2014 WL 2115790 (N.D. Cal. May 20, 2014) (dismissed without prejudice on primary jurisdiction grounds, citing the “FDA’s recent decision . . . to engage in active consideration of the issue”).

The Blue Diamond Growers class certification decision is somewhat surprising against this backdrop. It will be interesting to see whether Judge Koh reconsiders her earlier primary jurisdiction ruling in light of the March 5 notice and subsequent decisions.

Practice Tip: Changes in law or the regulatory landscape often necessitate renewing a previously unsuccessful motion.