9
only preempts state labeling requirements
for artificial flavors, colors or preservatives.
See, e.g., Werdebaugh v. Blue Diamond Grow-
ers
, No. 5:12-cv-02724, 2013 WL 5487236 (N.D.
Cal. Oct. 2, 2013);
In re Frito-Lay N. Am., Inc. All
Natural Litig.
, 1:12-cv-00854, 2013 WL 4647512
(E.D.N.Y. Aug. 29, 2013);
Parker v. J.M. Smucker
,
Co., 3:13-cv-00690, 2013WL 4516156 (N.D. Cal.
Aug. 23, 2013);
Astiana v. Ben & Jerry’s Home-
made Inc.
, 4:10-cv-04387, 2011 WL 2111796
(N.D. Cal. May 26, 2011). Unlike preemption
with respect to “natural” labeling claims for
meat products that have been explicitly pre-
approved by USDA, FDA’s nonbinding policy
statement regarding use of the term “natural”
does not have the force of law required to pre-
empt conflicting state law.
Primary Jurisdiction
In a few instances, courts have found that FDA
has primary jurisdiction over “natural” litiga-
tion, but have largely declined to dismiss or
stay such litigation under this theory. Courts
traditionally weigh four factors when deciding
whether to apply the primary jurisdiction doc-
trine: (i) the need to resolve an issue (ii) that
has been placed by Congress within the juris-
diction of an administrative body having regu-
latory authority (iii) pursuant to a statute that
subjects an industry or activity to a compre-
hensive regulatory authority that (iv) requires
expertise or uniformity in administration.
Cox
v. Gruma Corp.
, No. 4:12-cv-6502, 2013 WL
3828800 (N.D. Cal. July 11, 2013). Generally,
courts that have dismissed or stayed “natu-
ral” litigation on primary jurisdiction grounds
have reasoned that FDA has unintentionally
failed to define “natural” and should be the
one to decide what constitutes the term.
See,
Id.
(staying litigation for six months and refer-
ring to FDA for administrative determination
question of whether and under what circum-
stances food products containing ingredients
produced using bioengineered seed may or
may not be labeled “Natural” or “All Natural” or
“100% Natural”);
Van Atta v. Gen. Mills, Inc.
, No.
1:12-cv-02815 (D. Colo. July 18, 2013), ECF No.
51 (staying litigation until the
Cox
referral is
decided).
“
Courts that have declined
to dismiss or stay litigation
under the primary jurisdiction
doctrine have held that
whether ‘natural’ labels are
false and misleading is not an
issue of first impression for
FDA and that it is appropriate
for courts to decide whether
a reasonable consumer
would find a ‘natural’ label to
be false or misleading.
”
Courts that have declined to dismiss or stay
litigation under the primary jurisdiction doc-
trine have held that whether “natural” labels
are false and misleading is not an issue of first
impression for FDA and that it is appropriate
for courts to decide whether a reasonable
consumer would find a “natural” label to be
false or misleading.
Bohac v. Gen. Mills, Inc.
,
No. 3:12-cv-05280 (N.D. Cal. Oct. 10, 2013),
ECF No. 36;
Rojas v. Gen. Mills, Inc.
, No. 3:12-
cv-05099, 2013 WL 5568389 (N.D. Cal. Oct. 9,
2013). Other courts have reasoned that since
FDA has neglected to define “natural,” and has
given no indication that it will do so in the
FDA Litigation
