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Private Surgeon General Class Action Defender

Two More Courts Defer to the FDA in Food “Misbranding” Class Actions

Posted in GMO, Misbranding

We previously reported Judge Yvonne Gonzalez Rogers’ decision to stay proceedings in the Cox v. Gruma Corp. matter while the FDA is asked to decide whether food products containing genetically modified organisms (GMOs) may be labeled “natural” or “all natural,” and her subsequent decision to similarly defer to the FDA in a case against Wholesoy concerning the terms “evaporated cane juice” and “soy yogurt.” (See prior posts here, here and here.)

Two more courts have followed suit. In a recent Report and Recommendation, a magistrate judge in Colorado recommended that a case challenging the “100% Natural” labels on some of General Mills’ Nature Valley granola products that allegedly contain GMOs (Van Atta v. General Mills, Inc., Case No. 1:12-cv-02815-MSK-MJW (D. Co. July 18, 2013)) be stayed pending action by the FDA in response to the referral made by Judge Gonzalez Rogers in Cox:

“[T]he court finds that invocation of the primary jurisdiction doctrine is appropriate. The issues of fact in this matter are not within the conventional experience of judges, they require the exercise of administrative discretion, and they require uniformity and consistency in the regulation of the business entrusted to the particular agency.”

Shortly thereafter, a federal court in the Northern District of California similarly stayed a case pending against Campbell Soup Company regarding the “100% Natural” labels on certain of its soups that allegedly contain GMOs (Barnes et al. v. Campbell Soup Company, Case No. C12-05154 JSW (N.D. Cal. July 25, 2013)). There, the court likewise held that it was proper to defer to the FDA’s regulatory authority over food labeling:

“The FDA has refrained from instituting a direct regulation or federal requirement [that] requires companies to disclose GMOs as ‘unnatural’ ingredients on its product. This inaction, nonetheless, does not remove the presumption that Congress squarely empowered that authority to the FDA pursuant to the FDCA and NLEA. Under these circumstances, deference to the FDA’s regulatory authority continues to remain the appropriate course. . . . Otherwise, the Court risks ‘usurp[ing] the FDA’s interpretive authority[,]’ and ‘undermining, through private litigation, the FDA’s considered judgments.’”

We see a definite trend and expect more courts to follow. Stay tuned.