Shook, Hardy & Bacon Partner Jim Muehlberger and Associate Elizabeth Fessler have authored a Law360 article that discusses the application of primary jurisdiction in lawsuits disputing “natural” claims on food and beverage products.
Titled "Recipe for Primary Jurisdiction Goes 'Natural,'" the article explains that the U.S. Food and Drug Administration (FDA) provides non-binding guidance on the term “natural,” which the agency interprets to mean that “nothing artificial or synthetic (including colors regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.” But facing an increase in citizen petitions and court requests for administration determinations, FDA has requested public input on whether to craft a formal definition for “natural” that would also apply to foods containing genetically engineered ingredients.
“This change in the FDA’s position has led at least 11 courts to stay litigation involving the term ‘natural’ until the agency completes its regulatory proceeding, and the trend is likely to continue,” note Muehlberger and Fessler. “Although several courts have determined stays are appropriate regarding ‘natural’ claims, the courts have not been uniform in their approach to managing cases while the stay is in place… Because a stay under the primary jurisdiction doctrine should remain in effect until the agency completes its review of the issue, the most economical approach may be for the court to require the parties to contact the court upon resolution of the FDA proceedings. Attorneys with pending litigation should evaluate whether the primary jurisdiction doctrine is implicated in their cases based on these new developments.”