Labeling Dispute over “Milk Protein Concentrate” in Yogurt Dismissed

A California appeals court has affirmed a lower court’s ruling dismissing a putative class action alleging that Safeway misbranded its Lucerne-brand of Greek yogurt because U.S. Food and Drug Administration (FDA) regulations prohibit the use of “milk protein concentrate” (MPC) in foods labeled as yogurt. Tamas v. Safeway, Inc., No. RIC1206341 (Cal. Ct. App., 4th Dist., Div. 3, order entered February 23, 2015).

The plaintiff argued that a 1981 FDA regulation determining yogurt’s “Standard of Identity” (SOI) dictated what ingredients are allowable in products sold as yogurt despite the agency’s stay of the regulation soon after it was issued. FDA promised to schedule a public hearing on the regulation but, as of January 2009, “due to competing priorities and limited resources, FDA has not held a public hearing to resolve these issues and the effective date for these provisions remains stayed. Therefore, these provisions were never in effect. Consequently, cultured milk and yogurts may deviate from the relevant standards in the previously mentioned respects.” The agency proposed a new rule that same month but never formally enacted any SOI for yogurt. The court disagreed with the plaintiff’s challenge to FDA’s actions, finding that FDA had the power to stay its own regulations partially or in their entirety.

The court also declined to consider the plaintiff’s policy argument that MPC should be excluded from yogurt because her arguments “sound like just the sort of concerns that are intended to be hashed out before the FDA, as part of its seemingly complicated analysis of which ingredients should be included (or excluded) in a newly enacted yogurt SOI,” it noted. “If there is one thing that is absolutely clear in this case, it is that assessing the relative benefits and detriments of allowing MPC to be used as an additive in yogurt is an issue that will have to be decided by the FDA.”

Issue 557