Courts Ask FDA to Clean Their Plates

Finding food labeling cases unappetizing, courts are asking the agency to take a stand on 'natural,' GMOs, more.

By Lisa Wongchenko, Morrison & Foerster

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In a span of two weeks, a sudden shift in opinion recently swept through federal courts handling food labeling litigation. As the number of lawsuits challenging food labels continues to climb, judges in four cases are looking for a solution outside the courthouse.

Dismissing or staying the cases under the doctrine of primary jurisdiction, these courts have found that food labeling requirements must be set by the FDA rather than by judges and juries throughout the country. These four rulings hint that the burden of food label regulation may be shifting back to the agency charged with that task. But other courts have declined to invite FDA to step in, and the agency itself has remained silent.

Judge Gonzalez Rogers led the charge in Cox v. Gruma Corp (No. 12-CV-6502 YGR, 2013 U.S. Dist. LEXIS 97207; N.D. Cal. July 11, 2013). She stayed plaintiff's claims challenging "all natural" labels on products allegedly containing GMOs and referred the matter to FDA for an "administrative determination" on the issue. Because FDA has not issued any regulations or given any indication as to its position concerning whether GMO ingredients are consistent with "natural" claims, the court ruled that "deference to FDA's regulatory authority is the appropriate course."

Two judges then followed suit in nearly identical cases: (Van Atta v. General Mills, Inc., No. 12-cv-02815; D. Colo. Aug. 5, 2013; and Barnes v. Campbell Soup Co., No. 12-cv-05185-JSW; N.D. Cal. July 25, 2013). The fourth case dismissed claims challenging the terms "evaporated cane juice" and "soy yogurt" because FDA has not yet set a uniform enforcement standard on these topics either. (See Hood v. Wholesoy & Co., No. 12-cv-05550-YGR, 2013 U.S. Dist. LEXIS 97836; N.D. Cal. July 12, 2013).

This is reminiscent of 2010 when another court asked FDA to weigh in — also regarding "natural" claims (Coyle v. Hornell Brewing Co., Inc., No. 08-2797, 2010 U.S. Dist. LEXIS 59467, at *10; D.N.J. June 15, 2010). But FDA wasn't interested. Citing a shortage of resources, the agency declined to offer any guidance on "natural" label claims beyond its existing informal policy.

In essence, FDA gave its blessing to judges and juries across the country to decide the merits of "natural" claims, as well as claims steeped in other regulatory gray areas. Since then, "misbranding" litigation has taken off. "Natural" claims continue to be a favorite, as plaintiffs commonly attack a smorgasbord of ingredients such as citric acid and added coloring. GMO claims in particular are on the rise, as consumer concern regarding this topic grows.

Now FDA is once again weighing whether or not to step in. But much has changed since 2010, and we have seen the effects of FDA's inaction. Declining to give a view as to whether GMO ingredients may be present in "natural" foods will not only encourage additional lawsuits, but also place the issue in front of various juries throughout the country to decide.

Much confusion and discord already exists around the topic of GMOs. Indeed, issues of cross-pollination and accidental exposure to GMOs bring into question what it even means to not contain GMOs. While California's ballot initiative to require GMO labeling and prohibit "natural" statements on GMO products failed, Connecticut recently became the first state to pass a bill requiring GMO labeling, raising the possibility that Congress' goal of uniformity in food labeling requirements could be undone by continued FDA silence.

Nonetheless, FDA might once again decline to act. Indeed, several courts have refused to hand their cases to FDA, betting on the agency's inaction. Rejecting the approach of the four other rulings, they have decided that "FDA is unlikely to respond in a timely manner to any referral from this Court." (Frito-Lay N. Am., Inc. All Natural Litig., No. 12-md-2413, 2013 WL 4647512, at *6-7; E.D.N.Y. Aug. 29, 2013).

How FDA will react is still unknown. But one thing is certain: these issues were cooked up, in part, by FDA, and courts have now sent them back to the kitchen. FDA's response will once again dictate the future of food labeling litigation.

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