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October 16, 2013
SAN FRANCISCOA federal judge has expressed skepticism that the U.S. Food and Drug Administration (FDA) will define a term that is keeping employed defense lawyers who represent food manufacturers including General Mills, Inc.
Plaintiffs have filed a litany of proposed class action lawsuits against food manufacturers over the term "Natural" and similar phrases.
One of those cases contends the presence of GMOs (genetically modified organisms) as well as high fructose corn syrup, high maltose corn syrup and maltodextrin render deceptive and misleading General Mills' use of the terms "100% NATURAL", "all natural" or "natural".
In the case above and two related lawsuits filed in the Northern District of California, General Mills asked U.S. District Judge William Orrick to defer to FDA on whether or not certain label claims are truthful. But in all three lawsuits, Orrick has declined to invoke a legal doctrine known as "primary jurisdiction".
"Given the litany of cases in this area over the years the Court is skeptical that the FDA will develop a policy regarding the term 'natural' anytime soon, especially since it has considered the matter for over two decades but still has not provided further guidance," the judge wrote in an Oct. 10 order denying General Mills' request for a three-month stay in a proposed class action filed by Judith Janney and Amy McKendrick.
General Mills pointed out judges in California (Cox. v. Gruma Corp.) and Colorado (Van Atta v. Gen. Mills, Inc.) put stays on cases pending a response from FDA.
But Orrick observed judges in his district have declined to invoke primary jurisdiction in several other lawsuits in which plaintiffs gripe over the term "natural". He cited cases filed against ConAgra Foods, Inc., Del Monte Corp., Dole Food Co., General Mills and Kraft Foods Global, Inc.
"Determining whether a term is false or misleading is within the province of the courts," Orrick wrote Oct. 9 in a similar lawsuit filed by Gabriel Rojas. "This case primarily requires asking whether a 'reasonable consumer' would be misled by the challenged statementswhat a 'reasonable consumer' thinks does not involve answering technical questions or scientific expertise."
The judge referred to a colleague in Florida who noted in a lawsuit filed against Campbell Soup Co. that "the FDA has repeatedly declined to adopt formal rulemaking that would define the word 'natural'".
The Rojas ruling wasn't entirely a loss for General Mills. The judge threw out several causes of action, although he granted plaintiffs 30 days to file an amended complaint.
Claims based on General Mills' advertising or website were dismissed. Other than the products' packaging, the lawsuit failed to identify advertising upon which the plaintiff relied, according to the court.
"Because Rojas fails to state where he saw such advertisements or when he visited General Mills's website, let alone relied upon and were misled by them, he does not sufficiently plead his claims", Orrick wrote.
Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition
Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a special focus on regulatory issues, including at the Food and Drug Administration.
Josh majored in journalism and graduated from Arizona State University the same year ‘Jake the Snake’ Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.
Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).
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