Hood v. Wholesoy & Co. et al

Filing 31

ORDER by Judge Yvonne Gonzalez Rogers granting Defendant's 12 Motion to Dismiss and Dismisses this Action without Prejudice. (fs, COURT STAFF) (Filed on 7/12/2013)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 JANET HOOD, individually and on behalf of all others similarly situated, United States District Court Northern District of California 11 12 Plaintiff, Case No.: 12-cv-5550-YGR ORDER GRANTING WHOLESOY’S MOTION TO DISMISS vs. 13 14 15 WHOLESOY & CO, MODESTO WHOLESOY COMPANY LLC, THE WHOLESOY COMPANY, TAN INDUSTRIES, INC., KEN NORDQUIST, AND TED NORDQUIST , 16 Defendants. 17 Pending before the Court is the Motion of Defendants Wholesoy & Co., Modesto Wholesoy 18 Company LLC, The Wholesoy Company, Tan Industries, Inc., Ken Nordquist, and Ted Nordquist 19 (collectively “Wholesoy”) to Dismiss the class action complaint of Plaintiff Janet Hood. (Dkt. No. 20 12.) Plaintiff brings this putative class action alleging that Wholesoy’s product labels do not 21 comply with certain requirements of the federal Food, Drug, and Cosmetics Act (“FDCA”), as 22 adopted by the California Sherman Law, Cal. Health & Safety Code section 109875, et seq. 23 (“Sherman Law”). Based upon those violations, Plaintiff asserts claims under state and federal 24 consumer protection statutes: the California Unfair Competition Law, Bus. & Prof. Code section 25 17200 et seq. (“UCL”); the California False Advertising Law, Cal. Bus. & Prof. Code section 26 17500 (“FAL”); the California Consumers Legal Remedies Act, Cal. Civ. Code section 1750 et seq. 27 (“CLRA”); the Song-Beverly Consumer Warranty Act, Cal. Civ. Code section 1790 et seq. (“Song28 Beverly”), and the Magnuson-Moss Warranty Act, 15 U.S.C. section 2301 (“Magnuson-Moss”). 1 Plaintiff also alleges a state law claim for restitution based on unjust enrichment and quasi-contract. 2 Wholesoy brings its motion under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) on 3 grounds of, among other things, abstention under the primary jurisdiction doctrine. Having carefully considered the papers submitted and the pleadings in this action, based upon 4 5 the record before the Court, and for the reasons set forth below, the Court GRANTS Defendants’ 6 Motion to Dismiss and DISMISSES THIS ACTION WITHOUT PREJUDICE under the doctrine of primary 7 jurisdiction. 8 I. REQUEST FOR JUDICIAL NOTICE As a preliminary matter, Wholesoy requests that the Court take judicial notice of sixteen 9 documents. (Wholesoy’s Request for Judicial Notice in Support of its Motion to Dismiss (“RJN”), 11 United States District Court Northern District of California 10 Dkt. No. 13.) Plaintiff has not objected to Wholesoy’s RJN. Wholesoy’s request for judicial notice therefore is GRANTED as to Wholesoy Exh. 1-13, and 12 13 DENIED as to Wholesoy Exhibits 14, 15 and 16. See Hal Roach Studios, Inc. v. Richard Feiner & 14 Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) 15 (overruled on other grounds in Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 16 2002). Exhibits 14 and 15 are letters from companies to the FDA concerning a proposed rule on 17 Evaporated Cane Juice, not official documents directly relevant to the matters at issue. Likewise, 18 Exhibit 16 is not directly referenced by or relevant to the complaint, and is improperly offered to 19 prove the truth of facts stated therein. Similarly, the Court GRANTS judicial notice as to Plaintiff’s Exhibits 1-8 as proper subjects 20 21 of judicial notice. See Fed. R. Evid. 201; Batwin v. Occam Networks, Inc., No. CV 07–2750 CAS 22 (SHX), 2008 WL 2676364, at *2 n. 3 (C.D.Cal. July 1, 2008) (taking judicial notice of letter from 23 the SEC). 24 II. SUMMARY OF ALLEGATIONS 25 Plaintiff alleges that Wholesoy’s product labeling is false and misleading because: 26 (1) the labeling fails to list “sugar” or “dried cane syrup” as an ingredient, but instead lists 27 “organic evaporated cane juice,” in violation of FDA labeling rules; and 28 2 1 (2) Wholesoy’s products fail to comply with the FDA standard of identity for “yogurt,” 21 CFR § 131.200, in that they do not contain any form of milk defined therein. 3 (Complaint, Dkt. No. 1, at ¶¶ 5-15.) Plaintiff alleges claims arising under California consumer 4 protection statutes: a first cause of action for unlawful business practices under the UCL; a second 5 cause of action for unfair business practices under the UCL; a third cause of action for fraudulent 6 business practice under the UCL; a fourth claim under the FAL for misleading and deceptive 7 advertising; a fifth cause of action for untrue advertising under the FAL; a sixth claim for violation 8 of the CLRA for unlawful sale of misbranded products and misrepresentations regarding those 9 product. Each of those claims is based, in turn, on Plaintiff’s allegation that Wholesoy has violated 10 multiple California Health & Safety Code sections which prohibit false or misleading statements on 11 United States District Court Northern District of California 2 products and product packaging or labeling, as well as sale of misbranded food products. 12 (Complaint ¶¶ 84-90.) Broadly, the first and fifth claims focus on the alleged falsity of the product 13 labeling, the second, third, and fourth claims focus on the misleading aspect, and the sixth claim 14 alleges both. In addition, she alleges an eighth and ninth claim for violation of federal and state 15 consumer warranty statutes, as well as a claim for common law unjust enrichment/restitution. 16 Plaintiff alleges that she has purchased Wholesoy soy yogurt products since 2008. 17 (Complaint ¶ 91.) She alleges that she read and reasonably relied on the labels of those products, 18 including the listing of the ingredient “Organic Evaporated Cane Juice” and the representation that 19 the products were “yogurt,” before purchasing them. (Complaint ¶¶ 92-95.) Plaintiff alleges that 20 these statements on Wholesoy’s products were both: (1) unlawful, in that they did not comply with 21 the applicable FDCA standards which are incorporated into California’s Sherman Food, Drug and 22 Cosmetic Act, California Health & Safety Code § 109875 et seq. (the “Sherman Law”); and (2) 23 deceptive in that they misled Plaintiff and other similarly situated consumers into purchasing the 24 products. Plaintiff alleges that she did not know and had no reason to believe that Wholesoy’s 25 products were misbranded and that she would not have bought the products if she had known the 26 truth about them. (Complaint ¶¶ 96, 97.) She further alleges that Wholesoy’s labeling, advertising 27 and marketing were false and misleading and designed to increase sales. (Complaint ¶ 100.) 28 A. “EVAPORATED CANE JUICE” 3 1 With respect to the use of the term “Evaporated Cane Juice,” Plaintiff alleges that the FDA 2 issued guidance in October 2009, and has sent warning letters to companies, advising that the use 3 of the term was unlawful. (Complaint ¶¶ 49, 51, 63, 65.) The guidance issued in October 2009 4 states that it is “Draft Guidance” that “Contains Nonbinding Recommendations,” and is “Not for 5 Implementation.” (See Plaintiff’s Opposition, Exhibit 6, “Guidance for industry: Ingredients 6 Declared As Evaporated Cane Juice; Draft Guidance,” Dkt. 17-7 [hereinafter “Draft ECJ 7 Guidance”].) As a preamble to the statements therein, the Draft ECJ Guidance states that it: 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 does not operate to bind FDA or the public. You can use an alternative approach if the approach satisfies the requirements of the applicable statues and regulations. If you want to discuss an alternative approach, contact the FDA staff responsible for implementing this guidance. (Draft ECJ Guidance at 1.) The introduction states that: FDA’s guidance documents, including this guidance, do not establish legally enforceable responsibilities. Instead, guidances [sic] describe the Agency’s current thinking on a topic and should be viewed only as recommendations, unless specific regulatory or statutory requirements are cited. The use of the word should in Agency guidances means that something is suggested or recommended, but not required. (Draft ECJ Guidance at 2.) The Draft ECJ Guidance then states that its intent 17 20 is to advise the regulated industry of FDA’s view that the term ‘evaporated cane juice’ is not the common or usual name of any type of sweetener, including dried cane syrup. Because cane syrup has a standard of identity defined by regulation in 21 CFR 168.130, the common or usual name for the solid or dried form of cane syrup is ‘dried cane syrup.’ 21 (Draft ECJ Guidance at 3.)1 The Draft ECJ Guidance explains that since the definition of juice is 22 liquid coming from fruits and vegetables, and sugar cane is not considered a “vegetable” by the 23 agency in this sense, sweeteners derived from sugar cane syrup should not be listed by names 24 suggesting they are juice. “FDA considers such representations to be false and misleading under 25 section 403(a)(1) of the Act (21 U.S.C. 343(a)(1)) because they fail to reveal the basic nature of the 18 19 26 27 1 28 FDA regulations require that manufacturers refer to foods by their “common or usual name.” 21 C.F.R. § 101.4(a). 4 1 food and its characterizing properties (i.e., that the ingredients are sugars or syrups) as required by 2 21 CFR 102.5.” Draft ECJ Guidance at 3. 3 On the other hand, the FDA has issued warning letters to companies listing “evaporated 4 cane juice,” as an ingredient notifying them that the FDA considers this to be a “violation” and 5 stating that the “proper way to declare this ingredient can be found on the FDA website at: 6 http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodL 7 abelingNutrition/ucm181491.htm,” a website link which led to the Draft ECJ Guidance. (See 8 Plaintiff’s Exhibit 8, FDA Warning Letter to Hail Merry, LLC, dated October 23, 2012 [“your 9 product lists “Evaporated Cane Juice” in the ingredient statement; however, evaporated cane juice is not the common or usual name of any type of sweetener.”]; Exhibit 9, FDA Warning Letter to 11 United States District Court Northern District of California 10 Bob’s Red Mill Natural Foods, dated July 31, 2012 [same].) The FDA’s July 2012 Regulatory 12 Procedures Manual indicates that a warning letter “communicates the agency’s position on a 13 matter,” in and that “Warning Letters are issued only for violations of regulatory significance.” 14 (See http://www.fda.gov/downloads/ICECI/ComplianceManuals/RegulatoryProceduresManual/ 15 UCM 074330.pdf). 16 B. 17 Plaintiff alleges that in order for a product to call itself “yogurt,” it must comply with the “YOGURT” 18 FDA’s Standard of Identity for yogurt at 21 CFR § 131.200. Because Wholesoy’s products labeled 19 as “yogurt” do not contain the ingredients required by the FDA’s Standard of Identity, namely any 20 form of dairy milk, they are misbranded. (Complaint ¶¶ 9, 10, 73-77.)2. 21 That regulation provides that “[y]ogurt is the food produced by culturing one or more of the 22 optional dairy ingredients specified in paragraph (c) of this section with a characterizing bacterial 23 culture that contains the lactic-acid producing bacteria, Lactobacillus bulgaricus and Streptococcus 24 thermophilus.” Instead, Wholesoy’s products are plant-derived imitation products that have been 25 developed and marketed in an effort to imply that the products contain the same nutritional quality 26 27 28 2 Wholesoy points out that the packaging for the products here features prominent labels stating “MADE WITH ORGANIC SOYBEANS,” “DAIRY FREE,” “made from single source U.S. grown organic soybeans,” and “VEGAN.” (RJN Exh. 1-12.) 5 1 of dairy products. (Complaint ¶ 71.) Therefore, Plaintiff contends, the use of the word “yogurt” in 2 the labeling of Wholesoy’s products renders the product misbranded and is inherently misleading to 3 the reasonable consumer. Plaintiff asserts that it is a violation of law to label a product as “yogurt” 4 when the product does not meet the standard of identity for yogurt stated in 21 CFR § 131.200. 5 More importantly, it misleads consumers to label products as “yogurt” when those products do not 6 have the same nutritional value contained in a true yogurt product. 7 Plaintiff further alleges that the FDA has sent warning letters to companies using the term 8 “milk” to describe soy-based products that fail to meet the appropriate standards for use of that 9 term. (Complaint ¶¶ 50, 79.) The Complaint quotes from an FDA warning letter sent to Lifesoy, 10 United States District Court Northern District of California 11 12 13 14 15 Inc. on August 8, 2008, which stated, in relevant part: Your LIFESOY® Natural Soymilk Unsweetened (1/2 gallon) and LIFESOY® Natural Soymilk Sweetened (1/2 gallon) products use the term “milk” as part of their common or usual name. Milk is a standardized food defined as the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows [21 CFR 131.110]. Therefore, we do not consider “soy milk” to be an appropriate common or usual name because it does not contain “milk.” We do consider “soy drink” or “soy beverage,” however, as acceptable common or usual names for such products. 16 17 (Complaint, Exh. 1.) Plaintiff, in her opposition, cites additional FDA warning letters concerning 18 labeling of products as “milk,” “yogurt,” or “cheese,” that did not meet the applicable standards of 19 identity. (Plaintiff’s Oppo., Exhibit 1, FDA Warning Letter to Fong Kee Tofu Company, Inc., 20 Exhibit 2, dated March 7, 2012 (ordering company to substitute “soy drink” or “soy beverage” for 21 soy milk because the product contains no milk); Exhibit 3, FDA Warning Letter to Bunker Hill 22 Cheese Company, Inc., dated January 2, 2001 (ordering company to remove label “French Yogurt 23 Cheese” from product because yogurt is a food that is defined by a standard of identity, and the 24 product did not meet the standard of identity); Exhibit 4, FDA Warning Letter to Cytosport, Inc., 25 dated June 29, 2011 (ordering company to remove the word “milk” from label of “Muscle Milk” 26 because the product contains no milk); Exhibit 5, FDA Warning Letter to Guggisberg Cheese, Inc., 27 dated February 23, 2009 (ordering company to remove labels “Yogurt Cheese” and “Vegetable 28 Yogurt Cheese” because the products do not meet the standard of identity for yogurt.) Plaintiff 6 1 contends these warning letters indicate that the FDA would not permit the use of the term “yogurt” 2 in connection with “soy yogurt.” 3 III. 4 ANALYSIS Among other grounds, Wholesoy moves to dismiss or stay the Complaint based upon the 5 doctrine of primary jurisdiction. Wholesoy argues that, because the FDA has regulatory authority 6 over food labeling and the issues in this case require expertise or uniformity in administration, the 7 Court should not “undermin[e], through private litigation, the FDA’s considered judgments.” Pom 8 Wonderful, LLC v. Coca-Cola Co., 679 F.3d 1170, 1178 (9th Cir. 2012). “The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a 10 complaint without prejudice pending the resolution of an issue within the special competence of an 11 United States District Court Northern District of California 9 administrative agency… and is to be used only if a claim involves an issue of first impression or a 12 particularly complicated issue Congress has committed to a regulatory agency.” Clark v. Time 13 Warner Cable, 523 F. 3d 1110, 1114 (9th Cir. 2008). A court traditionally weighs four factors in 14 deciding whether to apply the primary jurisdiction doctrine: “(1) the need to resolve an issue that 15 (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory 16 authority (3) pursuant to a statute that subjects an industry or activity subjects an industry or 17 activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in 18 administration.” Syntek Semiconductor Co. v. Microchip Tech., Inc., 307 F.3d 775, 781 (9th 19 Cir.2002) (amended). “[T]he doctrine is a ‘prudential’ one, under which a court determines that an 20 otherwise cognizable claim implicates technical and policy questions that should be addressed in 21 the first instance by the agency with regulatory authority over the relevant industry rather than by 22 the judicial branch.” Clark, 523 F.3d at 1114. “Normally, if the court concludes that the dispute 23 which forms the basis of the action is within the agency’s primary jurisdiction, the case should be 24 dismissed without prejudice so that the parties may pursue their administrative remedies.” Syntek, 25 307 F.3d at 782; Astiana v. Hain Celestial Grp., Inc., 905 F. Supp. 2d 1013, 1015 (N.D. Cal. 2012) 26 (if doctrine applies, court can either stay proceedings or dismiss the case without prejudice.) 27 Thus, where determination of a plaintiff’s claim would require a court to decide an issue 28 committed to the FDA’s expertise without a clear indication of how FDA would view the issue, 7 1 courts of this district have repeatedly found that dismissal or stay under the primary jurisdiction 2 doctrine is appropriate. See Astiana v. Hain Celestial, 905 F. Supp. 2d. at 1016 (relying on Pom 3 Wonderful to dismiss claims where the absence of FDA rules or policy statements would require 4 court to make an independent determination that would “risk undercutting the FDA’s expert 5 judgments and authority”); Ivie v. Kraft Foods Global, Inc., C-12-02554-RMW, 2013 WL 685372 6 at *7 (N.D. Cal. Feb. 25, 2013) (applying primary jurisdiction to dismiss one of several claims 7 where particular issue was subject of proposed new regulation as to which FDA issued public 8 notice and heard comments); see also All One God Faith, Inc. v. Hain Celestial Grp., Inc., C 09- 9 3517 SI, 2012 WL 3257660 (N.D. Cal. Aug. 8, 2012) (finding application of primary jurisdiction doctrine appropriate where claims “would inevitably require the [c]ourt to interpret and apply 11 United States District Court Northern District of California 10 federal organic standards, potentially create a conflict with those standards, and would intrude upon 12 and undermine the USDA’s authority”); Gordon v. Church & Dwight Co., No. 09-5585 SI, 2010 13 WL 1341184, at *2 (N.D. Cal. Apr. 2, 2010) (dismissing UCL, FAL, and CLRA claims on primary 14 jurisdiction grounds where, inter alia, “the FDA has stated that it is still considering public 15 comments and other data in connection with warnings similar to those that plaintiffs seek to have 16 the court impose”); Taradejna v. Gen. Mills, Inc., 909 F.Supp.2d 1128, (D. Minn. 2012) 17 (dismissing complaint under primary jurisdiction doctrine where FDA had issued a proposed rule 18 on precise subject at issue, and decision by court could undermine national uniformity in labeling 19 regarding what met standard of identity for “yogurt”); cf. Janney v. Mills, C 12-3919 PJH, 2013 20 WL 1962360 (N.D. Cal. May 10, 2013) (finding question of abstention under primary jurisdiction 21 doctrine “a close one” where FDA had expressed varying positions on question of the term 22 “natural” in food labeling, but denying request to abstain where FDA had “repeatedly declined” to 23 take a clear position and shown a “relative lack of interest” in doing so, such that deferral to FDA 24 would likely be futile). 25 The Court finds that the Syntek factors are met here and the primary jurisdiction doctrine 26 applies. The FDA has regulatory authority over food labeling. See 21 U.S.C. § 341 et seq. The 27 FDCA establishes a uniform federal scheme of food regulation to ensure that food is labeled in a 28 manner that does not mislead consumers. See 21 U.S.C. § 341 et seq. Food labeling enforcement is 8 1 a matter that Congress has indicated requires the FDA’s expertise and uniformity in administration. 2 Congress amended the FDCA through the passage of the Nutrition Labeling and Education Act 3 (NLEA) to “clarify and to strengthen” the FDA’s “legal authority to require nutrition labeling on 4 foods, and to establish the circumstances under which claims may be made about nutrients in 5 foods.” H.R. Rep. No. 101-538, at 7, reprinted in 1990 U.S.C.C.A.N. 3336, 3337. No state may 6 “directly or indirectly establish. . . any requirement for the labeling of food that is not identical to 7 the [FDCA]” 21 U.S.C. § 343-1(a) (emphasis supplied). 8 9 With respect to “evaporated cane juice,” the Draft ECJ Guidance on which Plaintiff relies says expressly that it is 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. 11 United States District Court Northern District of California 10 At a minimum, this indicates to the Court that the FDA’s position is not settled. So far as it 12 appears, FDA has not yet set a uniform enforcement standard. Thus, determination of Plaintiff’s 13 claim would require the Court to decide an issue committed to the FDA’s expertise without a clear 14 indication of how FDA would view the issue. See Astiana v. Hain Celestial, 905 F. Supp. 2d at 15 1016 (absence of FDA rules or policy statements regarding use of “natural” for cosmetics); Ivie, 16 2013 WL 685372 at *7 (dismissing serving size claim where new regulation was pending before 17 FDA); Taradejna, 909 F.Supp.2d at 1135 (dismissing complaint regarding standard of identity for 18 “yogurt” where a proposed FDA rule would address the issue directly, once finalized). 19 Plaintiff also cites to the district court’s decision in Ivie as support for its contention that the 20 Draft ECJ Guidance establishes the FDA standard applicable here. There Judge Whyte found that 21 the Draft ECJ Guidance was unenforceable, though nevertheless relevant to the issue of whether 22 the labels in question were deceptive or misleading. Ivie, 2013 WL 685372 at *12. Here, Plaintiff 23 alleges that the use of the term “evaporate cane juice” is not merely misleading, but also is 24 unlawful. Yet Plaintiff offers no authority to support the contention that use of that term is 25 unlawful, whether under enforceable FDA/Sherman Law standards or any others. 26 Turning to the “yogurt” Standard of Identity, the FDA does not appear to have spoken at all 27 as to whether “soy yogurt” should be subject to the same standards as dairy yogurt. It is not 28 apparent to the Court whether the FDA would consider the addition of the word “soy” in front of 9 1 yogurt to mean that the product was subject to that same Standard of Identity or, like “butter” 2 versus “peanut butter,” subject to a completely different standard. Cf. 21 C.F.R. § 164.150 3 (regulatory definition of “peanut butter”) and 21 U.S.C. § 321a (statutory definition of “butter”). 4 Many products contain soy and the need for the FDA to administer a comprehensive approach is 5 compelling. See, e.g., 21 C.F.R. § 139.117 [references to macaroni products with soy]; 21 C.F.R. § 6 172.379 [soy beverages, soy-based butter substitutes; soy-based cheese substitutes]. While Plaintiff points to two warning letters indicating that an analogous product, soy milk, 8 was considered misbranded by the FDA under the standards applicable to [dairy] “milk,” this does 9 not provide clear guidance for food producers or the Court. Because it is unclear whether 21 C.F.R. 10 § 131.200 is intended to apply to “soy yogurt” products, the Court finds it appropriate to leave that 11 United States District Court Northern District of California 7 decision to the FDA in the first instance. 12 Plaintiff argues that abstention is not required here because the issues presented do not 13 require any scientific or nutritional expertise to resolve. Unlike Taradejna, no real scientific 14 analysis is required to say whether the products are misbranded. In Taradejna, the claims involved 15 a question of whether a Greek-style yogurt could appropriately include Milk Protein Concentrate, 16 “a form of ultrafiltered milk that typically ‘retain[s] all protein components of milk’” under the 17 standard of identity for yogurt. See Taradejna, 909 F.Supp.2d at 1130 (quoting 70 Fed. Reg. 18 60751, 60752 (Oct. 19, 2005)). The court there dismissed the complaint, ruling that the “FDA is in 19 the best position to resolve any ambiguity about the standard of identity for yogurt” and that the 20 FDA can “ensure national uniformity in labeling, utilizing the Agency’s special expertise in this 21 regard.” Id. at 1134, 1135. Plaintiff argues that this case has no such scientific complexity since all 22 that the Court must decide is that “soy yogurt” has no milk, and “evaporated cane juice” is really 23 just sugar. Plaintiff’s appeal to the simplicity of the decision belies the fact that the FDA has not 24 come to any clear conclusion regarding either issue. It also contradicts Plaintiff’s allegations and 25 arguments that labeling products as “yogurt” misleads consumers not simply because the products 26 contain soy rather than dairy, but also because those products “do not have the same nutritional 27 value” connoted by the use of the term “yogurt.” (Plaintiff’s Oppo. at 5:7-8; see also Complaint ¶¶ 28 71, 78.) In the absence of such a clear statement, should the Court go forward with consideration of 10 1 the Complaint, it would find itself in a position of either having no set standard to apply, or 2 announcing a standard and thereby overstepping its proper role. 3 Under these circumstances, based upon the record presented, the Court finds it is 4 appropriate to defer to the authority and expertise of the FDA to say what the appropriate rules 5 should be with respect to “soy yogurt” and “evaporated cane juice.” Rendering a decision based on 6 what this Court believes the FDA might eventually decide on either of these issues “would usurp 7 the FDA’s interpretive authority.” Pom Wonderful, 679 F.3d at 1176. Deference in this case is the 8 appropriate course. Pom Wonderful, 679 F.3d 1170, 1176; Clark, 523 F.3d at 1114. Therefore, the 9 Court ORDERS that Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE.3 This Order terminates Dkt. No. 12. 11 United States District Court Northern District of California 10 IT IS SO ORDERED. 12 13 Dated: July 12, 2013 ____________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 28 Because the Court dismisses the claims on primary jurisdiction grounds, it does not reach the merits of Wholesoy’s arguments for dismissal based upon preemption, lack of standing, or failure to state a plausible claim. 11

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