Parker v. J.M. Smucker Co.

Filing 29

Order by Hon. Samuel Conti denying #20 Motion to Dismiss.(sclc2, COURT STAFF) (Filed on 8/23/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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DIANA PARKER, individually and
on behalf of all others
similarly situated,
Plaintiff,

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v.

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J.M. SMUCKER CO.,
Defendant.

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) Case No. C 13-0690 SC
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) ORDER DENYING MOTION TO DISMISS
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I.

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INTRODUCTION
Now before the Court is Defendant J.M. Smucker Co.'s

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("Defendant") motion to dismiss Plaintiff Diana Parker's

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("Plaintiff") amended class action complaint.

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20 ("MTD").

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("Reply"), and appropriate for decision without oral argument, Civ.

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L.R. 7-1(b).

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Defendant's motion.

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ECF Nos. 16 ("FAC"),

The motion is fully briefed, ECF Nos. 22 ("Opp'n"), 24

For the reasons explained below, the Court DENIES

1 II.

BACKGROUND

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Defendant is an Ohio corporation that manufactures a variety

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of food products, including the four types of Crisco cooking oil at

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issue in this case: Crisco Pure Vegetable Oil, made from soybean

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oil; Crisco Pure Canola Oil, made from rapeseed oil; Crisco Pure

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Corn Oil, made from corn oil; and Crisco Natural Blend Oil, made

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from combined rapeseed, sunflower, and soybean oil.

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(collectively, these products are the "Oils").

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California resident who purchased Crisco Pure Vegetable Oil.

United States District Court

For the Northern District of California

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8.

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have purchased the Oils.

FAC ¶¶ 9-14

Plaintiff is a
Id. ¶

She brings this suit on behalf of herself and other people who
Id. ¶ 3.

Plaintiff's claims are based on a single fact: all of the Oils

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include the label "All Natural" next to the Oil's name on the

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packaging.

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not "natural" at all, because they are made with genetically

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modified ("GM" or "bioengineered") crops, and are also "so heavily

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processed that they bear no chemical resemblance to the ingredients

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from which they were derived."

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consumers like her are drawn to "All Natural" products because

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those products are perceived to be "better, healthier, and more

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wholesome."

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consumers into buying products they otherwise would have avoided,

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whether due to health concerns or mere preference.

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8.

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See id. ¶¶ 11-14.

Id. ¶ 2.

Plaintiff claims that the Oils are

Id. ¶ 1.

As Plaintiff alleges,

Labels like Defendant's therefore trick

See id. ¶¶ 2,

Plaintiff's first basis for her suit, that food derived from

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GM crops cannot be natural, is based on an array of definitions

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from industry, government, and health organizations.

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These definitions all characterize bioengineered crops as having

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Id. ¶¶ 16-20.

with another's in ways that do not occur naturally.

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20.

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U.S. soy, and over 80% of U.S. canola crops are GM," and that

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Defendant sources its ingredients from U.S. commodity suppliers who

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supply GM crops.

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factual statement from Defendant itself about GM crops, taken from

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its "Statement Regarding Genetic Modification": "Due to expanding

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use of biotechnology by farmers and commingling of ingredients in

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United States District Court

been scientifically altered to combine one plant's genetic material

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For the Northern District of California

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storage and shipment, it is possible that some of our products may

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contain ingredients derived from biotechnology."

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Plaintiff links these facts together to conclude that Defendant

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must be using non-natural GM crops in its Oils, and therefore that

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the "All Natural" statement that appears on Defendant's Oils is

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actionably false, misleading, or unfair.

See id. ¶¶ 16-

She also asserts that "[o]ver 70% of U.S. corn, over 90% of

Id. ¶ 21.

Plaintiff's claims include only one

Id. ¶ 22.

Id. ¶ 23.

Plaintiff's second, separate factual ground for this suit --

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that the Oils are not natural because they are highly processed and

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no longer retain their source-plants' original chemical properties

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-- is based on distinctions among oil-manufacturing processes.

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¶ 24.

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pressing, which she says "allow the oils to retain the chemical

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composition occurring in nature."

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this process with the less mechanical, more chemical methods she

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says Defendant uses to make its Oils.

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Plaintiff, Defendant begins its manufacturing process by physically

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extracting oil from vegetables, but after that, the raw oil becomes

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unrecognizably modified.

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steps to this process: alkali-neutralization, meant to separate

Id.

Plaintiff first describes extraction methods like cold-

Id. ¶ 25.

See id. ¶ 26.

See id. ¶¶ 27-30.

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She then contrasts

According to

There are several

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free fatty acids from the neutralized oil; bleaching and

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deodorizing, meant to lighten the oil's color and minimize its

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odor; and conditioning.

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all of these steps, Defendant treats the Oils with harsh,

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potentially harmful chemicals that render the Oils less like

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natural oils extracted mechanically and more like unnatural

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chemical composites.

Id. ¶¶ 28-30.

Plaintiff alleges that in

See id.

action against Defendant: (i) violation of California's Consumer

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United States District Court

Based on the above facts, Plaintiff asserts three causes of

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For the Northern District of California

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Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750, et seq.; (ii)

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violations of California's Unfair Competition Law ("UCL"), Cal.

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Bus. & Prof. Code § 17200, et seq.; and (iii) breach of express

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warranty.

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that (i) Plaintiff's FAC fails to meet federal pleading standards;

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(ii) federal law preempts Plaintiff's claims; (iii) the Court

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should dismiss the FAC under the primary jurisdiction doctrine;

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(iv) and Plaintiff fails to state claims under each cause of action

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she pleads.

FAC ¶¶ 39-62.

Defendant now moves to dismiss, arguing

See MTD at 2-4.

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III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure

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12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

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Block, 250 F.3d 729, 732 (9th Cir. 2001).

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on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory."

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

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should assume their veracity and then determine whether they

"Dismissal can be based

"When there are well-pleaded factual allegations, a court

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plausibly give rise to an entitlement to relief."

Ashcroft v.

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Iqbal, 556 U.S. 662, 679 (2009).

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must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions.

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice."

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Twombly, 550 U.S. 544, 555 (2007)).

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complaint must be both "sufficiently detailed to give fair notice

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to the opposing party of the nature of the claim so that the party

However, "the tenet that a court

Threadbare recitals of the

Id. at 678 (citing Bell Atl. Corp. v.
The allegations made in a

United States District Court

For the Northern District of California

10

may effectively defend against it" and "sufficiently plausible"

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such that "it is not unfair to require the opposing party to be

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subjected to the expense of discovery."

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1202, 1216 (9th Cir. 2011).

Starr v. Baca, 652 F.3d

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Additionally, allegations of fraud must meet the heightened

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pleading standard of Federal Rule of Civil Procedure 9(b), which

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requires that plaintiffs alleging fraud "must state with

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particularity the circumstances constituting fraud."

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Ford Motor Co., 567 F.3d 1120, 1125-27 (9th Cir. 2009).

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satisfy Rule 9(b), a pleading must identify the who, what, when,

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where, and how of the misconduct charged, as well as what is false

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or misleading about the purportedly fraudulent statement, and why

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it is false."

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Sys., 637 F.3d 1047, 1055 (9th Cir. 2011) (internal quotation marks

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and citations omitted).

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Kearns v.
"To

United States ex rel Cafasso v. Gen. Dynamics c$

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1 IV.

DISCUSSION

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A.

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Defendant argues that Plaintiff's FAC fails to plead with

Pleading Issues

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particularity or plausibility either that the Oils contain GM

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ingredients or that Defendant's processing makes the Oils otherwise

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non-natural.

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MTD at 9-12.

As to the first theory, Defendant argues that Plaintiff fails

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to allege that the Oils actually contain non-natural ingredients --

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only that it is highly likely that they are, given the percentage

United States District Court

For the Northern District of California

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of GM crops in the U.S. and the fact that Defendant admits the

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possibility of using such crops.

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correct that Plaintiff must provide "more than a sheer possibility"

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that the Oils contain GM ingredients, see Iqbal, 556 U.S. at 678,

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but the Court finds Plaintiff's pleadings sufficiently plausible on

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this point.

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See id. at 9-10.

Defendant is

As to Plaintiff's second theory, Defendant claims that

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Plaintiff does not allege with sufficient specificity that the Oils

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contain trace chemicals, and that Plaintiff does not explain how

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the process she describes render the Oils "chemically altered."

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MTD at 11-12.

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FDA regulations and policy -- discussed further below -- such that

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her allegations are implausible under Twombly and Iqbal.

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Court finds that Plaintiff pleads this theory with sufficient

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specificity to satisfy Rule 9(b).

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out scientifically precise descriptions of how the Oils' chemical

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makeup changes.

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where, and how of the allegedly misleading conduct, which she has

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done: Plaintiff's FAC describes Defendant's chemical processing of

Defendant adds that Plaintiff's claims contravene

Id.

The

Plaintiff does not need to set

She only needs to describe the who, what, when,

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the Oils, states that this renders them non-natural, and concludes

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that if the Oils are non-natural then the "All Natural" tag is

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false or misleading.

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this theory remains to be litigated, but it cannot be dismissed on

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the pleadings.

See Cafasso, 637 F.3d at 1055.

The truth of

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B.

Standing

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Since Plaintiff pleads that she only purchased Crisco Pure

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Vegetable Oil, not any of the other three Oils, Defendant concludes

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that Plaintiff lacks standing to sue based on the other three Oils.

United States District Court

For the Northern District of California

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MTD at 24.

Plaintiff responds that she has standing not just based

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on the purchases, but on Defendant's business practices, and that

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since the Oils are substantially similar, Plaintiff has standing to

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represent purchasers of all four Oils.

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is correct.

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on standing issues like this one.

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Ice Cream, Inc., No. C-11-2910 EMC, 2012 WL 2990766, at *11 (N.D.

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Cal. July 20, 2012).

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there is sufficient similarity between the products purchased and

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not purchased," such as whether the products are of the same kind,

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whether they are comprised of largely the same ingredients, and

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whether each of the challenged products bears the same alleged

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mislabeling.

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Co., No. 12-2907 SC, 2012 WL 6737800, at *4 (N.D. Cal. Dec. 28,

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2012).

Opp'n at 22-23.

Plaintiff

It is true that "there is authority going both ways"
See Astiana v. Dreyer's Grand

But "the critical inquiry seems to be whether

Id. at *13; see also Colucci v. ZonePerfect Nutrition

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The Court finds that there is sufficient similarity between

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Crisco Pure Vegetable Oil and the other three Oils identified in

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Plaintiff's FAC.

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have highly similar labels.

They are all the same kind of product.

They all

Plaintiff alleges the same actionable

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conduct as to each of them.

This is enough for the Court to

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conclude that Plaintiff has standing to sue for alleged mislabeling

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of all four Oils.

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C.

Preemption

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Defendant argues that Plaintiff's claims are preempted because

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they conflict with both FDA policies on bioengineered foods and

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federal food labeling regulations.

MTD at 12-17.

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First, Defendant claims that FDA policies make clear that the

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FDA has, for years, rejected the argument that bioengineered foods

United States District Court

For the Northern District of California

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must be labeled differently, since the FDA has determined that

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there is no material difference (for labeling purposes) between

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bioengineered foods and non-bioengineered foods.

Id. at 12-13.

For example, in 1992, the FDA declared that it would regulate

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bioengineered foods under its existing regulatory framework,

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"utilizing an approach identical in principle to that applied to

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foods developed by traditional plant breeding."

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Policy: Foods Derived from New Plant Varieties, 57 F.R. 22984-01

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(May 29, 1992) (the "1992 Policy").1

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bioengineered foods need not be labeled differently from non-

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bioengineered foods unless they differ so much that the "common or

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usual name" no longer applies to the bioengineered food."

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22991.

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information about the labeling of bioengineered foods, but

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afterward stated again that the use of bioengineered food was not

Statement of

The FDA concluded that

Id. at

In 1993, the FDA issued a public request for more data and

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This and other FDA documents cited in this Order appear as
exhibits to Defendant's Request for Judicial Notice, ECF No. 21
("Def.'s RJN"), which the Court GRANTS under Federal Rule of
Evidence 201 because they are public, government documents. The
Court cites to the Federal Register for documents that appear
there, and to Defendant's RJN for those that do not.
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"material" and did not need to be specially disclosed.

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Labeling: Foods Derived from New Plant Varieties, 58 F.R. 25837-03,

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25839 (Apr. 28, 1993).

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Food

The FDA has reiterated as recently as 2001 and 2005 that it

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finds no basis for requiring special labeling of bioengineered

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foods.

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voluntary bioengineering labeling), 5 (FDA statement before the

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Senate on bioengineering labeling).

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that at no point has the FDA stated any intention to alter its

See MTD at 5-6; Def.'s RJN Exs. 4 (FDA guidance on

This Court has also confirmed

United States District Court

For the Northern District of California

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longstanding position not to adopt any regulations governing the

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term "natural," regardless of consumers being misled.

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Lockwood v. Conagra Foods, Inc., 597 F. Supp. 2d 1028, 1033-34

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(N.D. Cal. 2009).

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See, e.g.,

Based on these numerous instances of FDA refusal to adopt

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regulations requiring the disclosure of bioengineered ingredients

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or further defining the term "natural," Defendant concludes that

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Plaintiff's lawsuit "seeks to impose new and different labeling

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standards for products that may have bioengineered ingredients."

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MTD at 13.

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case concerns.

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false or misleading since the Oils are not, in fact, 100 percent

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natural.

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Plaintiff responds that this is not really what her
She alleges that the "All Natural" statement is

See Opp'n at 13-15.

Defendant replies by arguing that whatever the basis of

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Plaintiff's claim, her goal is ultimately to require that

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bioengineered foods be labeled differently from non-bioengineered

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foods in a way preempted by federal law.

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not an accurate statement of Plaintiff's argument.

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Plaintiff's theory, Defendant could have simply left "All Natural"

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Reply at 11-12.

This is

Under

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off the labels.

But because they included the phrase, Plaintiff

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claims that the labels are misleading.

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theory.

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its use of bioengineered ingredients (if any exist at all), but

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Plaintiff is only alleging that the "All Natural" claim might be

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untrue and misleading if Defendant in fact does use bioengineered

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ingredients or processing techniques that render a natural

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ingredient non-natural.

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preempted on these grounds.

This is not a preempted

Defendant may not affirmatively be required to disclose

Plaintiff's claim is therefore not

United States District Court

For the Northern District of California

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Defendant also argues that FDA regulations governing the

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identification of common ingredients preempts Plaintiff's state law

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claims.

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the Nutrition Labeling and Education Act ("NLEA"), is the operative

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statute in this case, establishes a regulatory scheme for food

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labeling.

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Drug Administration (the "FDA") regulatory authority over food

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labeling due to the need for expertise and uniformity in that

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field, and has also stated that federal law preempts state law on

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food labeling: "[N]o State . . . may directly or indirectly

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establish . . . any requirement for the labeling of food that is

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not identical to the [FDCA]."

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The Food, Drug, and Cosmetics Act ("FDCA), as amended by

21 U.S.C. § 341 et seq.

Congress has given the Food and

Id. § 343-1(a).

On this point, Defendant essentially argues that because the

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FDA requires food producers to label ingredients according to their

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common or usual names, and the FDA does not require bioengineered

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ingredients to be so labeled, Defendant would violate FDA

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regulations if it referred to the Oils' ingredients as, for

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example, "bioengineered soy."

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102.5(a) (setting out this regulation)).

MTD at 14-17 (citing 21 C.F.R. §

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According to Defendant,

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Plaintiff's theory would require food labeling that is not

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identical to the FDCA and is therefore preempted.

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Defendant's argument fails.

Id.

Again, Plaintiff is not demanding

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that Defendant label its products differently, even though she

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alleges that she would not have bought any of the Oils had they

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been labeled as including bioengineered ingredients, for example.

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And this is not a case in which a plaintiff sued a food producer

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for not disclosing its use of bioengineered ingredients.

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Plaintiff sued Defendant for allegedly making a false or misleading

Rather,

United States District Court

For the Northern District of California

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statement on its products.

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theory that Defendant should have labeled the product differently,

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just that it should not have included a certain label that is

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allegedly false or misleading.

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It is not even implied in Plaintiff's

This theory is not preempted.

Accordingly, the Court finds that Plaintiff's claims are not

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preempted by FDA regulations or federal food labeling laws.

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Defendant's motion is DENIED on this point.

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D.

Plaintiff's State Law Claims
i.

UCL, CLRA, and FAL claims

Defendant moves to dismiss Plaintiff's state law causes of

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action for failure to state a claim.

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of action are for violations of the CLRA and UCL, respectively,

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though the latter claim is predicated on alleged violations of the

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CLRA and California's False Advertising Law ("FAL"), Cal. Bus. &

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Prof. Code § 17500, et seq.

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Plaintiff's first two causes

The CLRA prohibits "unfair methods of competition and unfair

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or deceptive acts or practices."

Cal. Civ. Code § 1770.

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relies on sections of the CLRA that prohibit the following:

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misrepresenting the source of a product, id. § 1770(a)(2);

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Plaintiff

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misrepresenting the characteristics, ingredients, or benefits of a

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product, id. § 1770(a)(5); misrepresenting the standard, quality,

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or grade of a product, id. § 1770(a)(7); advertising a product

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without intent to sell it as advertised, id. § 1770(a)(9); and

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misrepresenting that a product has been supplied in accordance with

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previous representations, id. § 1770(a)(16).

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because Defendant represented that the Oils were "all natural" when

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they were not, it violated the CLRA.

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Plaintiff claims that

The UCL prohibits all unlawful, unfair, or fraudulent conduct.

United States District Court

For the Northern District of California

10

See Cal. Bus. & Prof. Code § 17200.

Each prong can be a separate

11

cause of action.

12

App. 4th 1544, 1554 (Cal. Ct. App. 2007).

13

claim under the unlawfulness prong by pleading that a business

14

practice violates a predicate law.

15

L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (Cal. 1999).

16

Unfairness claims can be based on business practices that violate

17

established public policy or are immoral, unethical, oppressive, or

18

unscrupulous, which cause injury to consumers outweighing the

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practice's benefits.

20

4th 1457, 1473 (Cal. Ct. App. 2006).

21

under the fraudulent prong by pleading that a defendant's business

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practices are likely to deceive members of the public.

23

AT&T Wireless Servs., Inc., 177 Cal. App. 4th 1235, 1254 (Cal. Ct.

24

App. 2009).

25

unlawful prong by violating the CLRA and FAL, since the "All

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Natural" label is allegedly false; (2) that Defendant's conduct is

27

unfair because it undermines the UCL and CLRA, and is offensive or

28

injurious to the public without countervailing beneficial effects;

Berryman v. Merit Prop. Mgmt., Inc., 152 Cal.
A plaintiff can state a

See Cel-Tech Commc'ns, Inc. v.

McKell v. Wash. Mutual, Inc., 142 Cal. App.
Plaintiffs can state claims

Morgan v.

Plaintiff alleges (1) that Defendant violated the

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1

and (3) that Defendant's practices are fraudulent because they are

2

likely to deceive reasonable consumers.

3

Defendant's only argument as to these claims is that, as a

4

matter of law, Plaintiff fails to allege that Defendant's "All

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Natural" statements would be likely to deceive a reasonable

6

consumer.

7

289 (9th Cir. 1995); see also Williams v. Gerber Prods. Co., 552

8

F.3d 934, 938 (9th Cir. 2008) ("reasonable consumer" standard

9

applies to UCL, CLRA, and FAL claims).

United States District Court

For the Northern District of California

10

MTD at 21 (citing Freeman v. Time, Inc., 68 F.3d 285,

Under the reasonable consumer standard, Appellants must "show

11

that 'members of the public are likely to be deceived.'"

12

68 F.3d at 289 (quoting Bank of West v. Super. Ct., 2 Cal. 4th

13

1254, 1267 (Cal. Ct. App. 1992)). "Likely to be deceived" implies

14

more than a mere possibility of misunderstanding -- "likelihood"

15

here is measured in terms of whether a significant portion of the

16

general consuming public might be misled.

17

Gamble Co., 105 Cal. App. 4th 496, 508 (Cal. Ct. App. 2003).

18

California Supreme Court has recognized "that these laws prohibit

19

'not only advertising which is false, but also advertising which[,]

20

although true, is either actually misleading or which has a

21

capacity, likelihood or tendency to deceive or confuse the

22

public.'"

23

Freeman,

Lavie v. Procter &
The

Kasky v. Nike, Inc., 27 Cal. 4th 939, 951 (Cal. 2002).

According to Defendant, the Court should dismiss Plaintiff's

24

state law claims as a matter of law because Plaintiff has not

25

articulated, in plausible terms, why any alleged presence of

26

bioengineered ingredients in the Oils would render the "All

27

Natural" statement misleading in light of FDA policy on

28

bioengineered ingredients and the term "natural."

13

See MTD at 22-

1
2

24.
The Court cannot make such a finding at this time.

While

3

Defendant is right that this Court and others have dismissed claims

4

like these at the pleading stage for not being plausibly misleading

5

to a reasonable consumer, Defendant's argument is too attenuated

6

and relies on mischaracterizations of Plaintiff's claims, as noted

7

above.

8

matter of law conclude, as Defendant urges, that reasonable

9

consumers would all understand that packaged, non-organic foods may

See supra, Section IV.C.

Moreover, the Court cannot as a

United States District Court

For the Northern District of California

10

contain bioengineered ingredients and that the only way to avoid

11

such ingredients completely is to buy only certified organic

12

products.

13

that, and it does not depend on a conflation of "natural" with

14

"organic."

15

consumer would read the "All Natural" label, assume that such a

16

product contains no bioengineered or chemically altered

17

ingredients, and would then be misled if the product did in fact

18

contain such things.

19

MTD at 23.

Plaintiff's argument is much simpler than

Rather, Plaintiff has alleged that a reasonable

Since the reasonable consumer issue cannot be resolved as a

20

matter of law at this point, the Court finds that Plaintiff has

21

sufficiently stated claims under the UCL and CLRA.

22

Williams, 552 F.3d at 938-39 (whether practices are deceptive,

23

fraudulent, or unfair is generally a question of fact not

24

resolvable at the pleading stage).

25

point is DENIED.

26

ii.

27
28

See also

Defendant's motion on this

Express Warranty

Plaintiff alleges that Defendant's product labels constitute
express warranties that became part of the basis of Plaintiff's

14

1

bargain with Defendant, such that Defendant's failure to deliver an

2

"All Natural" product constituted a breach of warranty.

3

62.

4

be dismissed because the "All Natural" label is mere puffery, not

5

an affirmation of fact; and that Plaintiff lacks privity with

6

Defendant.

7

statements can constitute express warranties, that Defendant's

8

label is not non-actionable puffery, and that California warranty

9

law includes an exception to the general rule requiring privity in

FAC ¶¶ 57-

Defendant argues that Plaintiff's express warranty claim must

MTD at 25.

Plaintiff responds that advertising

United States District Court

For the Northern District of California

10

warranty actions, permitting breach of express warranty claims

11

arising from affirmations of fact made by manufacturers in labels

12

or advertisements.

13

Opp'n at 24-25.

The Court finds that Plaintiff has alleged sufficient facts to

14

make out a claim for breach of express warranty.

"All Natural" is

15

an affirmative claim about a product's qualities, and it does not

16

amount to mere puffery because it is not outrageous and

17

generalized.

18

Servs., Inc., 911 F.2d 242, 246 (9th Cir. 199) (puffery is

19

"outrageous generalized statements"); Keith v. Buchanan, 173 Cal.

20

App. 3d 13, 22 (Cal. Ct. App. 1985) (advertising statements can be

21

construed as warranties).

22

California law provides an exception in express warranty claims

23

arising from affirmative representations made in labels.

24

Sherwin Williams Co., 42 Cal. 2d 682, 696 (Cal. 1954) (affirming

25

exception).

26

Magnuson-Moss Act governing express warranties, which concerns

27

defects -- therefore the line of cases addressing warranty claims

28

under that statute does not apply here.

See Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection

Moreover, Plaintiff is correct that

Burr v.

Moreover, this case is not based on the California

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See, e.g., Dreyer's Grand,

1

2012 WL 2990766, at *3.

2

Defendant's motion on this point is

therefore DENIED.

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E.

Primary Jurisdiction

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"The primary jurisdiction doctrine allows courts to stay

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proceedings or to dismiss a complaint without prejudice pending the

6

resolution of an issue within the special competence of an

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administrative agency."

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1114 (9th Cir. 2008).

9

which a court determines that an otherwise cognizable claim

Clark v. Time Warner Cable, 523 F.3d 1110,
"[T]he doctrine is a 'prudential' one, under

United States District Court

For the Northern District of California

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implicates technical and policy questions that should be addressed

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in the first instance by the agency with regulatory authority over

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the relevant industry rather than by the judicial branch."

Id.

The Court does not find that primary jurisdiction is

13
14

appropriate here.

As noted above and in other cases, various

15

parties have repeatedly asked the FDA to rule on "natural"

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labeling, and the FDA has declined to do so because of its limited

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resources and preference to focus on other priorities.

18

Janney v. General Mills, No. C 12-3919 PJH, 2013 WL 1962360, at *6

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(N.D. Cal. May 10, 2013) (noting that the FDA generally refers

20

parties to its policy statements on "natural," as described above,

21

and that the FDA appears to have little interest in addressing the

22

issue anew); Lockwood, 597 F. Supp. 2d at 1035 (same).

23

Court found that the primary jurisdiction doctrine applied to this

24

case, referring the matter to the FDA would do little more than

25

protract matters.

26

///

27

///

28

///

See, e.g.,

Even if the

Defendant's motion is DENIED on this point.

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1
2

V.

CONCLUSION
As explained above, Defendant J.M. Smucker Co.'s motion to

3

dismiss Plaintiff Diana Parker's amended class action complaint is

4

DENIED.

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6

IT IS SO ORDERED.

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8

Dated: August 23, 2013

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UNITED STATES DISTRICT JUDGE

United States District Court

For the Northern District of California

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