Court dismisses "natural" claim on primary jurisdiction grounds

Astiana v. Hain Celestial Group, Inc., --- F. Supp. 2d ----, 2012 WL 5873585 (N.D. Cal.)

A decision with potentially broad implications, if followed: Plaintiffs challenged defendants’ use of “all natural,” “pure natural,” and “pure, natural & organic” on the labels of their cosmetic products because the products allegedly contained artificial and/or synthetic materials. They alleged fraud, along with violations of the UCL, CLRA, and FAL.  But the FDA has no policy on the use of “natural.”  Plaintiffs argued that the court shouldn’t wait for the FDA, and that courts routinely decide on their own whether conduct was misleading.

The court held that determining whether or not “natural” was false or misleading would “undermin[e], through private litigation, the FDA's considered judgments.” Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012). Pom involved a challenge to a juice name where the FDA already had detailed, specific rules about how juices could be named based on juice content, and Coca-Cola complied with those rules (though the FDA hadn’t specified that all words in a juice blend’s name must appear on the label in the same size).  The Pom court said that it wasn’t holding that the Coca-Cola label was nondeceptive, but Congress had given the task of guarding deception to the FDA.  This wasn’t about preemption, but rather about deference to the FDA.  (I entirely disagree—and many cases allow claims about food labels to proceed, where the FDA hasn’t regulated very specifically.  See, e.g., Gerber.)

Pom, the court here reasoned, was about how the FDA has expertise in guarding against deception in the food labeling context, and thus was implicitly a primary jurisdiction case.  The primary jurisdiction doctrine counsels a stay/dismissal when an issue has been placed by Congress within an administrative body’s jurisdiction pursuant to a comprehensive regulatory statute that requires expertise or uniformity in adminstration.  Such was the case here.  Issues of cosmetics labeling have been entrusted to the FDA, and they can be “remarkably specific,” including specifying the ordering of ingredients, the naming scheme to be used, and the size of the type.  The regulations even “shed light” on what’s false or misleading “in certain contexts,” such as fragrance or flavor.  (But the claim here wasn’t tightly bound to any of the areas in which the requirements are so specific.)

The only FDA statement about “natural” was an informal policy statement limited to food that couldn’t be imported into the cosmetics context.  In the absence of FDA rules or regulations, the court wasn’t going to stick its nose into the issue.