A federal court in Minnesota has dismissed without prejudice state law-based consumer-fraud claims filed against a company that makes Greek yogurt not by straining it, a process essential to the traditional production of this thickened dairy product, but by adding milk protein concentrate (MPC). Taradejna v. General Mills, Inc., No. 12-993 (D. Minn., decided December 10, 2012). So ruling, the court directed the parties to initiate proper proceedings before the Food and Drug Administration (FDA).

The court recites FDA yogurt-related standard-of-identity initiatives since 1981, culminating in a pending 2009 proposal that would permit the use of “any safe and suitable milk-derived ingredient as an optional dairy ingredient in the manufacture of yogurt.” Finding that application of the primary jurisdiction doctrine was appropriate in the matter, the court states, “The underlying issue here is whether MPC is a proper, permitted ingredient in yogurt. The resolution of this question falls squarely within the competence and expertise of the FDA, pursuant to the authority granted to the Agency by Congress. … The current standard of identity for yogurt, the stayed 1982 limitations, the Agency’s subsequent public statement about the standard, and the 2009 Proposed Rule do not constitute a model of clarity. The FDA is in the best position to resolve any ambiguity about the standard of identity for yogurt—a matter requiring scientific and nutritional expertise.”

The court also notes that national uniformity in labeling would be ensured if FDA decides the matter, stating in this regard, “The Agency’s unique role in ensuring such consistency and uniformity is particularly significant here, as several recently filed yogurt lawsuits throughout the country involve the same or similar issues as found in the instant suit. The increasing volume of this litigation creates the potential for inconsistent judicial rulings. This underscores the importance of promoting uniformity by referral of this matter to the FDA.” Finding the issue moot, the court declined to issue a ruling on preemption.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.