BEVANS v. GENERAL MILLS, INC.
MEMORANDUM AND ORDER staying this action for 120 days, until 10/11/2016, so that this Court can consider any developments that may follow the submission of comments to the FDA; on or before October 4, 2016, the parties will make a submission, not t o exceed five pages, updating the Court on any relevant developments and suggesting next steps this Court should take, including whether any extension of the stay is appropriate; terminating 138 Motion for Summary Judgment ; terminating 140 Mot ion for Summary Judgment ; terminating 142 Motion for Partial Summary Judgment; terminating 148 Motion for Partial Summary Judgment; terminating 169 Motion to Strike ; terminating 170 Motion to Strike ; terminating 171 Motion to Strike ; terminating 172 Motion to Strike ; terminating 174 Motion to Strike ; terminating 175 Motion to Strike ; terminating 187 Motion to Strike. Signed by Judge Kevin McNulty on 6/13/2016. (nr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
IN RE GENERAL MILLS, INC. KIX
Civ. No. 12-249 (KM)
MEMORANDUM AND ORDER
KEVIN MCNULTY, U.S.D.J.:
Plaintiffs filed this class action alleging that defendant, General Mills,
Inc. (“General Mills”) misled consumers by labeling its Kix cereal products as
“made with all natural corn” when those products were made from
bioengineered corn. On November 1, 2013, following the lead of other courts
considering similar cases, I referred this action to the Food and Drug
Administration (“FDA”) for an administrative determination on the question of
whether and under what circumstances food products containing
bioengineered corn may be labeled “natural.” (ECF no. 91) By letter addressed
to this Court dated January 6, 2014, the FDA declined to make a
determination on this issue. (ECF no. 94) The case was therefore reopened.
(ECF no. 98)
On November 12, 2015, the FDA issued a request for comments relating
to use of the term “natural” on food product labels. See Use of the Term
“Natural” in the Labeling of Human Food Products; Request for Information
and Comments, 80 Fed. Reg. 69,905 (Nov. 12, 2015). In light of this, the
parties have filed supplemental briefing addressing how the recent FDA action
relates to this case. (ECF no. 20 1-204)
Based on the parties’ submissions, I find that it is appropriate to stay
this action pursuant to the primary jurisdiction doctrine. See generally Reiter v.
Cooper, 507 U.S. 258 (1993); see also Kane v. Chobani, LLC, Civ. No. 14-15670,
2016 WL 1161782 (9th Cir. March 24, 2016) (holding that stay of class action
was warranted pending FDA delineation of scope and permissible usage of
terms “natural” and “evaporated cane juice” in connection with food products).
I find a stay particularly appropriate in this case given that the FDA’s request
for comments specifically refers to the issue of bioengineered ingredients. As to
that issue, the expertise of the FDA is critical. The period for comments has
only recently closed, on May 10, 2016. See FDA Requests Comments on Use of
the Term “Natural” on Food Labeling, available at
I /Ntw 1
Unlike the Ninth Circuit, however, I have stayed the action, not for an openended period pending the FDA’s resolution of the question, but for a period of
120 days, subject to renewal if appropriate.
Therefore, IT IS this 13th day of June, 2016,
ORDERED that this action is stayed for 120 days, until October 11,
2016, so that this Court can consider any developments that may follow the
submission of comments to the FDA;
ORDERED that on or before October 4, 2016, the parties will make a
submission, not to exceed five pages, updating the Court on any relevant
developments and suggesting next steps this Court should take, including
whether any extension of the stay is appropriate;
ORDERED that the parties’ motions for summary judgment and motions
to strike are administratively terminated, pending resolution of the stay. (ECF
nos. 138, 140, 142, 148, 169-175, 187) As appropriate, these motions can be
renewed or refiled at a later date to be established by the Court.
HON. KEVIN MCNULTY, U.S.
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