Multiple consumer class actions have been filed around the country involving the labeling of food products as “natural” or “all-natural.” Meanwhile, after years of inactivity in this area, the federal Food & Drug Administration announced in 2015 that it was seeking public comment with an eye towards issuing a rule concerning whether it is permissible to use the term natural in labeling food products, particularly if they contain foods produced with genetic engineering or that contain high fructose corn sugar. The FDA’s comment and notice period has been completed. The pendency of the potential FDA rule led the United States Court of Appeals for the Ninth Circuit to stay a consumer class action in which the plaintiffs alleged that Chobani yogurt was improperly labeled as natural despite containing evaporated cane juice which allegedly should have been identified as sugar. Kane v. Chobani, LLC (no. 14-15670, decided March 24, 2016).

Most recently, Judge William Pauley in the United States District Court for the Southern District of New York has stayed a multi-district consumer class action against Kind LLC, the manufacturers of Kind bars, on the basis of the pending FDA rulemaking. The decision in In Re: KIND LLC “Healthy and All Natural” Litigation (15-MD-2645, decision issued September 19, 2016). As Judge Pauley noted: “[T]he FDA seems to be prepared to address core issues in this case, including what types of processed foods may be labeled ‘natural’ and whether genetically engineered foods may be labeled ‘natural.’” In view of the FDA’s authority to bar false and misleading labels, the issues raised in the litigation appeared to be within the FDA’s discretion. As Judge Pauley noted, staying the action until the FDA’s rule is announced will avoid conflicting court rulings on the issues presented.  And as the Ninth Circuit pointed out, the FDA’s primary jurisdiction and expertise in this area should be deferred to in light of the FDA’s announcement of its intention to clarify the applicable law, thereby conserving judicial resources.

Judge Pauley’s well-reasoned ruling – on the heels of the Ninth Circuit’s stay order - is likely to increase the number of defendant requests for stays in similar pending food labelling lawsuits, and it would appear there is scant basis to deny such requests.

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