Cross-posted at WLF’s Forbes.com contributor site
Food makers’ use of “natural” on product labels and advertisements continues to provide class action lawyers with litigation fodder. Such a case-by-case approach to determining what is and is not natural, we have argued previously, poorly serves consumers and producers. Recent judicial developments, described below, have done nothing to sway our opinion that, regardless of how torturous it will be, formal federal rulemaking is preferable to regulation-by-litigation.
A Divided Food Court? As we noted in a May 22 Legal Pulse post, Northern District of California Judge Hamilton rejected General Mills’ request that Janney’s class action be put on hold under the “primary jurisdiction doctrine” to give the Food and Drug Administration (FDA) a chance to act. Such a delay would be “futile” in Judge Hamilton’s words. Janney v. General Mills.
Fast forward to June 7 in the same court, where Judge Rogers issued a tentative ruling in Cox v. Gruma Corp. that she was “inclined to order that this matter be stayed under the doctrine of primary jurisdiction” for six months to await FDA action to define natural. Plaintiff Cox argues that Gruma’s Mission Tortilla products are mislabeled as natural because Gruma uses genetically-modified grains. Without referring to Janney, Judge Rogers drew a distinction between the facts there, which involve sweeteners, and in Cox, which involve so-called GMOs, a subject “FDA has not addressed, even informally” with regards to “natural.” FDA has been asked to address the issue, as Cox herself cited in a potentially counterproductive June 10 response. That filing referenced an agency website passage on a pending GMO labeling citizen petition. Judge Rogers has asked for further briefing to be completed by Friday. Continue reading