Court Considers Stay of GM Labeling Lawsuit Under Primary Jurisdiction Doctrine

A federal judge in California has notified the parties to a consumer-fraud action against the company that makes Mission® tortilla chips of her inclination to stay the litigation for six months and refer to the Food and Drug Administration (FDA) the question “whether products containing GMO [genetically modified organisms] or bioengineered ingredients may properly be labeled ‘Natural’ or ‘All Natural.’” Cox v. Gruma Corp., No. 12-6502 (N.D. Cal., notice filed June 7, 2013).

The plaintiffs have opposed the tentative stay order, arguing that a prompt
regulatory determination is unlikely given FDA’s past inaction on the matter.
They reportedly cited a recent Florida decision denying a soup company’s
motion to dismiss similar litigation on preemption grounds because FDA does
not regulate “Natural” or “All Natural” food labeling claims.

The court, however, cited a Ninth Circuit ruling deferring to FDA’s regulatory
authority so that the agency’s “considered judgments” would not be
undermined “through private litigation.” Gruma Corp. has called for the court
to dismiss the action altogether under the primary jurisdiction doctrine,
arguing that FDA regulates food labeling. During a June 11, 2013, hearing, the
court did not apparently issue a ruling, but called for additional briefing. See
Thomson Reuters News & Insight, June 12, 2013.