Hunton Retail Law Resource

We previously reported on the U.S. Food and Drug Administration’s (“FDA’s”) request for public comment concerning the use of the term “natural” on food labels, and we noted that businesses should consider seeking a stay of any pending lawsuits challenging their use of the term “natural” on food labels under the primary jurisdiction doctrine. The Ninth Circuit, home of the infamous “Food Court,” has now invoked that doctrine and has ordered the stay of a pending “natural” mislabeling class action in Kane v. Chobani, LLC, No. 14-15670.

In Kane, the three-judge panel based its decision to stay the case on primary jurisdiction grounds. The plaintiffs’ claims asserted that the defendant’s use of the term “natural” on its yogurt products was deceptive and otherwise unlawful. According to the panel, the delineation of the proper scope and permissible usage of that term “implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.” Noting the FDA’s ongoing proceedings regarding the use of the term “natural,” the panel determined that a stay was appropriate under the primary jurisdiction doctrine. The panel noted, however, that the district court could limit the duration of the stay “[i]f future events render the FDA’s apparently imminent resolution of the…‘natural’ issues illusory.”

But the decision was not all good news – at least for the defendant in that case. The panel vacated the district court’s order granting the defendant’s motion to dismiss in favor of a stay pending FDA action.

Although the primary jurisdiction doctrine arguably worked to the plaintiffs’ advantage in Kane, businesses now have a stronger basis to stay “natural” mislabeling cases in their early stages. It now remains to be seen how the FDA will come down on the proper use of “natural” on food labels. In the meantime, we anticipate further lawsuits will be stayed on primary jurisdiction grounds.