Ninth Circuit puts food labeling challenge on hold pending FDA action.

• As food industry stakeholders are well aware, “natural” claims invite the risk of consumer class action challenges in the absence of any formal regulatory definition or regime to govern the use of the term.  Similarly, food companies also have faced challenges related to the use of the term, “evaporated cane juice” on product labels, with plaintiffs citing to a 2009 FDA Draft Guidance that states “FDA’s view that the term ‘evaporated cane juice’ is not the common or usual name of any type of sweetener, including dried cane syrup.”

• On March 24, the Ninth Circuit issued a ruling in a challenge related to the labeling of Chobani yogurt.  Citing the doctrine of primary jurisdiction, the court ordered the challenge to be stayed pending FDA’s completion of “proceedings” regarding the use of the terms, “evaporated cane juice” and “natural” in food labeling.  The court’s reference to “ongoing FDA proceedings” means FDA’s November 2015 solicitation of public comment on the use of the term “natural” in food labeling, and the Agency’s July 2015 statement that it anticipated issuing final guidance on the use of term, “evaporated cane juice” by the end of 2016.

• Although the Ninth Circuit ruling directly affects only the Chobani case, many believe that it may result in the broader issuance of stays in similar class action lawsuits.  However, in key footnote language, the ruling indicates that the stay need not be permanent if FDA takes too long to act on these matters.  Specifically, the court noted “that the duration of the stay remains within the sound discretion of the district court.  If future events render the FDA’s apparently imminent resolution of the ‘evaporated cane juice’ and ‘natural’ issues illusory, such events should inform the district court’s exercise of its discretion.”  Thus, the reprieve granted by this ruling may be time-limited.  Particularly as many expect future FDA action on “natural” claims (if any) to take several years, it remains to be seen how long trial courts actually may be willing to wait and see.