Down the Rabbit Hole: Primary Jurisdiction Redux
"When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”
While perhaps not as far down the rabbit hole as Alice was, the Courts within the Northern District of California are decidedly split on whether to use the primary jurisdiction doctrine to stay food cases with “natural” claims. The primary jurisdiction doctrine allows a court to stay or dismiss a case pending the resolution of an issue within the special competence of an administrative agency, such as FDA. As discussed in this blog before, in July 2013 Judge Gonzalez Rogers invoked the doctrine, stayed a case for six months, and referred the matter to FDA for an administrative determination of whether and under what circumstances GMO-containing food products may or may not be labeled “natural.” Her decision acknowledged FDA’s non-binding guidance somewhat loosely defining and setting a policy for use of the term “natural,” but also the lack of any definition/use policy for “GMO.”
A Colorado District Court followed Judge Gonzales Rogers’ lead, but the Eastern District of New York held that since there was no telling how and when the FDA would expressly define “natural,” it would not stay the case and wait for FDA to weigh in.
Adding to the confusion, in June 2013 Judge Phyllis J. Hamilton of the Northern District of California invoked the doctrine to dismiss a “natural” cosmetics case because FDA has no policy on the use of “natural” in cosmetics, compared to its policy for food. I posited whether the difference in the holdings, food vs. cosmetics, was whether it was due to the lack of any attempt to define the term for cosmetics, and whether Judge Gonzales Rogers’ use of the lack of a definition for GMO would carry over to other food cases. It turns out that Judge Orrick of the Northern District has seized upon that very issue – whether or not a definition is available – for a very different result in a case questioning whether a food containing GMO ingredients can be labeled “natural.”
In direct contrast to Judge Gonzales Rogers, Judge Orrick found that because the FDA had some definition for “natural,” because it sometimes enforced that definition, and because FDA had shown no interest in further regulation of the term, FDA had done what it felt was appropriate and had left it up to the Courts for further determination. Judge Orrick acknowledged that issues related to food labeling are within the expertise of FDA, but since the proper use of the term “natural” was not “an issue of first impression” or one that has not been addressed “in the first instance” by FDA and was within the conventional experiences of judges, it was within the court’s purview to determine whether a term is false or misleading. Contrast this with Judge Gonzales Rogers, who seemed to say that because FDA had some definition for “natural” that was sometimes enforced, it had shown an interest in regulating the term and should therefore be left to it to decide how the term natural could be used with GMO.
The Courts in the Northern District of California seem to be quite literally following Alice in Wonderland: “The question is,” said Alice, “whether you can make words mean so many different things.” It seems to me that the question should be whether you should make words mean so many different things. But I suppose it all comes down to the ultimate question: “The question is,” said Humpty Dumpty, “which is to be master—that's all.”
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