Figy v. Lifeway Foods, Inc.

Filing 46

ORDER vacating hearing and setting case management conference. Case management statement due by 1/19/2015. Case management conference set for 1/26/2015 01:30 PM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 10/21/2014. (tehlc1, COURT STAFF) (Filed on 10/21/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT E. FIGY,
Plaintiff,

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v.
LIFEWAY FOODS, INC.,

Case No. 13-cv-04828-TEH
ORDER VACATING HEARING AND
SETTING CASE MANAGEMENT
CONFERENCE

Defendant.

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On May 5, 2014, the Court stayed proceedings in this case under the primary

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United States District Court
Northern District of California

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jurisdiction doctrine because the Food and Drug Administration (“FDA”) reopened public

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comment on the use of the term Evaporated Cane Juice (“ECJ”), the ingredient at issue in

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this case. May 5, 2014 Order at 10 (Docket No. 44). At that time, the Court set a

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compliance hearing on November 3, 2014, to determine whether the stay should be lifted.

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Id. As instructed, the parties provided a joint statement outlining their positions on this

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matter. Joint Statement (Docket No. 45). For the reasons set forth below, the November 3

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compliance hearing is VACATED and the stay remains in effect.

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DISCUSSION
The FDA has not yet issued its final guidance on this issue. Joint Statement at 1.

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The Court concludes that the same reasons for applying the primary jurisdiction doctrine in

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May still apply at this time. In short, by staying this case until the FDA issues final

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guidance, the Court enhances its decision-making efficiency and ensures the uniform

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application of regulatory law. Order at 7.

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The Court is not persuaded by Plaintiff’s argument that the Supreme Court decision

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(much less amicus briefs) in POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228

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(2014), requires lifting the stay at this time. In that case, the Court held that an unfair

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competition claim under the Lanham Act was not precluded by the FDA’s regulatory

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authority under the Food, Drug and Cosmetic Act (“FDCA”). Id. at 2238-41. The Court

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did not discuss the primary jurisdiction doctrine. See id. The question of whether a case

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can be brought is separate from whether it should be heard right now. The Supreme

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Court’s preclusion holding does not alter this Court’s prudential application of the primary

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jurisdiction doctrine in order to promote judicial efficiency and uniformity.

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Nonetheless, the Court recognizes that the parties do not yet know with certainty
when, or even if, the FDA will promulgate final guidance on this issue. Although the

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Court previously concluded that the FDA is likely to make a final pronouncement, that

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conclusion is somewhat undermined by the passage of time. A prolonged delay may

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prejudice Plaintiff, weighing against applying the primary jurisdiction doctrine in the

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United States District Court
Northern District of California

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future. See Swearingen v. Amazon Pres. Partners, Inc., No. 13-cv-04402-WHO, 2014 WL

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3934000 at *2 (Aug. 11, 2014) (“[I]t seems possible that the FDA will issue final guidance

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this year. A modest stay at this time will not prejudice plaintiffs.”). However, the Court

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sees no reason to conclude that Plaintiff faces a risk of prejudice at this point.

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CONCLUSION
Accordingly, the hearing set for November 3, 2014 is VACATED and the action

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remains STAYED. A case management conference shall be held on January 26, 2015, at

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1:30 PM to apprise the Court of the status of this matter. The parties shall file a joint

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statement of no more than six pages by January 19, 2015, updating the Court on the status

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of the FDA’s action with respect to the ECJ guidance and the parties’ positions as to

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whether the stay shall remain in effect.

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IT IS SO ORDERED.

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Dated: 10/21/2014

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THELTON E. HENDERSON
United States District Judge

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