The doctrine of primary jurisdiction gained ground in false advertising litigation, as Judge Sammartino of the Southern District of California dismissed a putative class action against Kashi Company because FDA signaled that it was reevaluating draft guidance that served as a partial basis for the plaintiffs’ complaint.
In Saubers v. Kashi Co., 2014 WL 3908595 (S.D. Cal. Aug. 11, 2014), Judge Sammartino held that because the FDA is in the process of evaluating the alleged deceptive and misleading representation, “evaporated cane juice,” the doctrine of primary jurisdiction warranted dismissing the claims. The Court held that the FDA’s draft guidance declaring the use of evaporated cane juice in product labeling to be deceptive and misleading is preliminary, non-binding and subject to revision.
In the case, six plaintiffs filed a class action complaint alleging that Kashi manufactures over 75 different food products that are “misbranded” because they list “evaporated cane juice” as an ingredient. Plaintiffs allege that “evaporated cane juice” is simply sugar, and Kashi misleads its consumers to believe its products have reduced sugar and are healthier. Plaintiffs based their complaint in part upon FDA’s 2009 informal guidance document stating that “evaporated cane juice” is not a common or usual name for any sweetener and is deceptive and misleading.
Kashi moved to dismiss the complaint based on a March 5, 2014 notice in the Federal Register inviting a new round of comments regarding the 2009 draft guidance. The notice stated that the FDA “has not reached a final decision” on the ingredient sometimes identified as “evaporated cane juice.”
Relying on the primary jurisdiction doctrine, Judge Sammartino held that “the FDA is the administrative agency charged with regulating the content of food labels” and a determination as to the propriety of using the term “evaporated cane juice” involved highly technical considerations that the FDA is equipped to handle. The Court echoed the opinion in Swearingen v. Santa Cruz Natural, Inc., 2014 WL 1339775 (N.D. Cal. Apr. 2, 2014) that the purpose of primary jurisdiction is to allow the courts to “benefit from FDA’s expertise on food labeling and will ensure uniformity in administration of the regulations.”
The Court was not persuaded by plaintiffs’ argument that the FDA’s notice for comment was merely a vague statement that they might review their prior opinion and does not provide a time frame in which it will render a decision. This argument was sufficient to defeat primary jurisdiction in Gustavson v. Mars, Inc., 2014 WL 2604774 (N.D. Cal. Jun. 10, 2014) (the FDA merely indicated that it intended to consider changing the labeling requirements). The FDA’s request for comment here makes clear that FDA is actively reviewing its prior draft guidance on whether the term “evaporated cane sugar” is deceptive or misleading.
The Court’s decision could signal a shift in reliance on the FDA rulemaking process to invoke primary jurisdiction, leading the way for other district court judges to rely on FDA pronouncements to resolve complex and highly technical issues regarding food and drug labeling. This also begs the question of whether FDA will more actively intervene in food and drug labeling litigation by initiating the rulemaking process on issues it wishes to address.