Concurrence and Application of Primary Jurisdiction in State Cour

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Concurrence Raises Questions Regarding the Application of Primary Jurisdiction in State Court

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Tuesday, August 22, 2023

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Last year we blogged about a decision in which the Court of Appeals of Georgia dismissed a deceptive product (dietary supplement) labeling case on primary jurisdiction grounds. That decision was subsequently appealed to the Supreme Court of Georgia which upheld the decision without explanation. However, in a concurrence authored by Justice Pinson (and joined by 2 other of the 9 Georgia Supreme Court justices), Justice Pinson raised questions about the applicability of one species of the primary jurisdiction doctrine in Georgia state courts.
In particular, Justice Pinson distinguished between two forms of primary jurisdiction. He characterized the first as “simply a species of statutory interpretation” in which courts have determined that “the governing statutory scheme put the issues within the exclusive jurisdiction of the agency.” Statutory construction is of course a necessary tool of any court, so there is no question that Georgia courts would apply this species of primary jurisdiction (whether interpreting federal or state law).
However, the other species of primary jurisdiction which has emerged in federal courts and percolated to state courts is based on prudential considerations. In such cases, courts applying primary jurisdiction have deferred to an agency’s concurrent jurisdiction based on considerations such as the agency’s technical expertise (often reflected in multi-factor balancing tests). Justice Pinson’s concurrence noted that the application of that species of primary jurisdiction “has to be answered by reference to Georgia law,” and that it was not obvious that such a law existed, at least in all cases.
Notably, these issues were not raised on appeal and so were not considered in relation to this case, but Justice Pinson wrote that “review of these questions may well be warranted in an appropriate case.” We will continue to monitor and report on whether the questions raised by the concurrence are explored elsewhere.