Federal Court Reverses ECJ Decision, Citing Primary Jurisdiction

In a putative class action alleging that a food company misled its customers by using the term “evaporated cane juice” (ECJ) instead of “sugar” on its labels, a California federal court has followed the lead of several other courts in recent decisions by dismissing the case without prejudice under the primary jurisdiction doctrine—this time, reversing its previous decision to allow the case to move forward. Swearingen v. Yucatan Foods LP, No. 13-3544 (N.D. Cal., order entered May 20, 2014). Guacamole producer Yucatan Foods had argued that the U.S. Food and Drug Administration (FDA) had primary jurisdiction over the matter, but Judge Richard Seeborg initially disagreed, finding that FDA had taken no action on ECJ since 2009 and thus that the agency considered the matter settled.

On March 5, 2014, one month after the Yucatan decision was filed, FDA announced that it would reevaluate its previous draft ECJ guidance. Following the announcement, courts began deciding similar cases in favor of ceding primary jurisdiction to FDA and dismissing the cases without prejudice. Additional information about a case decided on similar grounds appears in Issue 520 of this Update.

Other recent primary-jurisdiction cases include Avila v. Redwood Hill Farm & Creamery, Inc., No. 13-335 (N.D. Cal., order entered May 19, 2014), and Swearingen v. Attune Foods Inc., No. 13-4541 (N.D. Cal., order entered May 15, 2014). In contrast, a California federal court recently chose to stay the case rather than dismiss it, but the court implied that it would defer to FDA’s ECJ ruling. Swearingen. v. Late July Snacks LLC, No. 13-4324 (N.D. Cal., order entered May 22, 2014).

Issue 524