When is Yogurt Not Yogurt? Judge Lets FDA Decide

By Riëtte van Laack –

District Judge Susan Nelson of the District of Minnesota recently concluded that FDA is best qualified and has been authorized by Congress to decide whether Milk Protein Concentrate (“MPC”) is a “proper, permitted ingredient in yogurt.” 

Earlier this year, on March 30, 2012, plaintiff Martin Taradejna filed a complaint alleging that the marketing of Yoplait Greek yogurt containing MPC violated several Minnesota consumer protection statutes, and failed to comply “with legal and regulatory rules” defining “yogurt.”  Specifically, Plaintiff alleged that the addition of MPC was not permitted under the standard of identity for yogurt.  Pointing to various publicly available statements and a proposed rule by FDA (see our prior post here), defendants General Mills and Yoplait USA argued that according to FDA yogurt may contain MPC.  Defendants filed a motion to dismiss arguing, among other things, that primary jurisdiction barred Taradejna’s claims.

As explained by the court, the primary jurisdiction doctrine “comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”  The Court concluded that the question whether MPC may be added to yogurt falls squarely within FDA’s jurisdiction and that the Agency is in the best position to resolve any ambiguities about the standard of identity for yogurt.  The Court further pointed to the multitude of “yogurt lawsuits” involving similar issues and the potential for inconsistent judicial rulings, and reasoned that leaving the decision to FDA would promote consistency and national uniformity in labeling.  Thus, the Court concluded that the reasons for applying the primary jurisdiction doctrine were present in the case, and dismissed the case without prejudice.