Readers will recall our many posts about the “all natural” litigation and the spate of cases plaintiff firms have brought challenging such label claims on food, beverage, and other products. Many of these cases have raised the issue of FDA guidance on the question, in contexts such as primary jurisdiction, agency deference, and preemption.
At least four citizen’s petitions are currently in play, asking the agency to define or to prohibit the use of the term “natural” in food labels. The FDA continues to analyze the issue, and recently repeated its call for input on the use of the term “natural” in the labeling of food products, including foods that are genetically engineered.
FDA also noted that some federal courts, as a result of litigation between private parties, have requested administrative determinations from FDA regarding whether food products containing ingredients produced using genetic engineering or foods containing high fructose corn syrup may be labeled as “natural.” But it has so far declined several judges’ requests to determine whether “natural” was a permissible labeling term in the context of those cases.
It is a fair question whether this step by the FDA means courts handling “natural” litigation should stay the suits pending FDA action. Of course, under the primary jurisdiction doctrine, a court may stay proceedings or dismiss a complaint pending the resolution of an issue within the special competence of an administrative agency.