A federal court in California has dismissed without prejudice a putative class action alleging that Wholesoy & Co. misleads consumers by (i) listing “organic evaporated cane juice” instead of “sugar” or “dried cane syrup” as an ingredient on its soy yogurt products in violation of Food and Drug Administration (FDA) labeling rules, and (ii) marketing its soy product as yogurt because it fails to comply with FDA’s standard of identity for “yogurt.” Hood v. Wholesoy & Co., No. 12-5550 (N.D. Cal., decided July 12, 2013). The court agreed with the company that the complaint must be dismissed under the primary jurisdiction doctrine because its resolution would require the court to decide an issue committed to the agency’s expertise “without a clear indication of how FDA would view the issue.”

Specifically, the court found that the evaporated cane juice guidance document on which the plaintiff relied is expressly “not a ‘legally enforceable’ standard, but only a suggestion. Given that statement, it is unclear why FDA subsequently has issued two warning letters citing that guidance. At a minimum, this indicates to the Court that the FDA’s position is not settled. So far as it appears, FDA has not yet set a uniform enforcement standard.”

The court also opined that “FDA does not appear to have spoken at all as to
whether ‘soy yogurt’ should be subject to the same standards as dairy yogurt.
It is not apparent to the Court whether the FDA would consider the addition
of the word ‘soy’ in front of yogurt to mean that the product was subject to
that same Standard of Identity or, like ‘butter’ versus ‘peanut butter,’ subject to
a completely different standard. . . . Many products contain soy and the need
for the FDA to administer a comprehensive approach is compelling.”
The court found it appropriate to defer to FDA’s authority and expertise
“to say what the appropriate rules should be with respect to ‘soy yogurt’
and ‘evaporated cane juice.’ Rendering a decision based on what this Court
believes the FDA might eventually decide on either of these issues ‘would
usurp the FDA’s interpretive authority.’”


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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.