Milk: Primary jurisdiction does it good

Physicians Committee for Responsible Medicine v. General Mills, Inc., 2006 WL 3487651 (E.D. Va.)

Plaintiffs (either truthtellers or animal-rights crackpots, depending on one’s point of view; the district court’s is hinted at in the opinion) sued numerous dairy producers and marketing groups for violating Virginia consumer protection law. The court granted defendants’ motion to dismiss for failure to state a claim.

Plaintiffs targeted a campaign that began in 2003, urging consumers to drink milk as a healthy way to lose weight. E.g., “[i]ncluding 24 ounces of low fat or fat free milk every 24 hours in a reduced-calorie diet provides the calcium and protein to support healthy weight loss.” The cases were initially filed in state court, but removed and consolidated under the Class Action Fairness Act (in an indicator of CAFA’s importance, one was removed because, though it sought only injunctive relief, that relief would allegedly have cost defendants more than $5 million to implement).

Defendants made a number of arguments in support of their motion. The court found that injunctive relief is unavailable to private individuals under the relevant Virginia laws (a supportable conclusion, though the reference to a “‘longstanding cannon of statutory construction’” put an odd image in my head) and that the doctrine of primary jurisdiction requires dismissal to give the FTC and FDA a first shot at addressing plaintiffs’ complaints (a conclusion with which I strongly disagree).

Plaintiffs filed administrative petitions with the FTC and the FDA against the same defendants. To avoid the risk of inconsistent judgments, the defendants argued, the court should dismiss the civil actions in deference to the expertise and special competence of those agencies on issues such as “the probable economic impact on consumers” of the challenged ads and the scientific questions of the effects of dairy consumption on weight. The court agreed, even though a much more appropriate inquiry would have been a preemption analysis. Courts decide issues of false advertising all the time, including false advertising of health benefits; Lanham Act jurisprudence is largely about evaluating likely impacts on consumers. Where there is a true conflict between a judicial and administrative evaluation, preemption provides ways to resolve that conflict. Here, there are merely two paths to a result.

Also of note: The defendants also argued that the ads at issue are federal “government speech” and thus can’t be barred by any state law. The plaintiffs accepted the general proposition, but argued that there were factual issues about whether particular statements were government speech; the court agreed. This raises the fascinating point that, when federally supported speech is concerned, the First Amendment isn’t the only thing that can override state regulations of speech. The Supremacy Clause has a role as well.