Primary Jurisdiction Doctrine Leads to Dismissal of Food Claim

As our loyal readers know, the plaintiffs bar is poised to bring proposed class action litigation against food and beverage sellers over virtually any ingredient, marketing, label, or advertising it can shoehorn into an alleged unlawful trade practice.  It is gratifying when a court recognizes that proper forum for many such complaints is the Food and Drug Administration, not in court.  A recent example arises from the proposed class action over an ingredient in yogurt.  See Taradejna v. General Mills Inc., No. 12-993 (D. Minn.,12/10/12).

Plaintiff Martin Taradejna brought this putative class action alleging violations under the Minnesota Prevention of Consumer Fraud Act, the Minnesota Unlawful Trade Practices Act, and the Minnesota Uniform Deceptive Trade Practices Act, related to the alleged mislabeling of Greek yogurt. Plaintiff alleged that Greek yogurt is typically strained to remove the whey, resulting in a creamier product, richer in protein and lower in lactose.  Taradejna alleged that rather than straining, Defendants chose to use Milk Protein Concentrate (“MPC”) when they entered the Greek yogurt market in 2010. A blend of dry dairy products, MPC is sold in a powdered form that typically retains all protein components of milk.  Defendants’ use of MPC in the manufacture of its Greek yogurt results in a product with the thickness and protein content typical of Greek yogurt.  And the labeling of Defendant’s Greek yogurt discloses MPC as an ingredient. Taradejna contended, however, that this Greek yogurt failed to comply with legal and regulatory rules governing the labeling of food because it contained significant amounts of  MPC, and thus was not true Greek   yogurt.  Consequently, Taradejna alleged that Defendants’ actions in marketing this product violated the various Minnesota consumer protection statutes.

The FDA regulates food product ingredients and labeling and creates definitions and “standards of identity” for certain foods. Standards of identity define the particular food, and describe its ingredients, and approved processes of manufacture; as far back as 1981, the FDA promulgated such standards of identity for yogurt, 21 C.F.R. § 131.200, low-fat yogurt, 21 C.F.R. § 131.203, and nonfat yogurt, 21 C.F.R. § 131.206.  Plaintiff alleged use of MPC as an ingredient is not permitted in yogurt. Defendants pointed to a publicly available response to questions raised with the FDA at a 2004 milk seminar, stating that milk protein concentrate can be used as an ingredient in yogurt to increase the nonfat solids content.  And in 2009, the FDA proposed additional regulations to permit the optional use of any safe and suitable milk-derived ingredient as an optional dairy ingredient in the manufacture of yogurt to increase the nonfat solids content of the food above the minimum required 8.25 percent.

Plaintiff sought to represent a national class that had allegedly paid too much for this Greek yogurt made another way.  Defendant moved to dismiss on several grounds, but the district court focused on primary jurisdiction, a common-law doctrine that is utilized to coordinate judicial and administrative decision making. See Access Telecomms. v. Southwestern Bell Tel. Co., 137 F.3d 605, 608 (8th Cir. 1998). The doctrine applies where a claim may be cognizable in the courts, but where enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. See Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 938 (8th Cir. 2005).  Agency expertise is the most common reason that courts apply the doctrine of primary jurisdiction. In addition, courts apply the doctrine to promote uniformity and consistency within the particular field of regulation.

The underlying issue here was whether MPC is a proper or permitted ingredient in the yogurt. The court concluded that resolution of this question falls squarely within the competence and expertise of the FDA, pursuant to the authority granted to the Agency by Congress. Issues of food labeling are sufficiently complex that they are best left to FDA for consideration prior to judicial review.  See Lever Bros. Co. v. Mauer, 712 F. Supp. 645, 651 (S.D. Ohio 1989); Heller v. Coca-Cola Co., 230 A.D.2d 768, 769-70 (N.Y. App. Div. 1996).)  The current standard of identity for yogurt, the  Agency’s public statements about the standard, and the 2009 Proposed Rule all may impact the question, and the FDA is in the best position to resolve any ambiguity about the standard of identity for yogurt – a matter requiring scientific and nutritional expertise.

Moreover, said the court, given that the FDA has issued its 2009 Proposed Rule on the standard of identity for yogurt, it would be imprudent for a court, at this juncture, to substitute its judgment for that of the Agency’s while revision of the standard is pending. Moreover, the FDA’s ultimate decision on the permitted ingredients in yogurt would ensure national uniformity in labeling, utilizing the Agency’s special expertise in this regard.

So, bottom line, the court used primary jurisdiction to put these issues where they belong—with the FDA.

 

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