Are Foods that Contain GMOs “All Natural”? Some Courts Won’t Wait for FDA’s View

By Ricardo Carvajal –

In a number of recent class actions, a central allegation has been that a marketer misled consumers by labeling as “all natural” a food that contains a genetically modified organism ("GMO").  Defendants usually invoke the doctrine of primary jurisdiction in an attempt to persuade the court to dismiss or stay the proceedings pending a referral of the issue to FDA.  In the last few weeks, at least two courts have acquiesced.  However, that budding winning streak came to an end last week with this decision out of the Eastern District of New York. 

Finding “unpersuasive” the reasons cited by other courts for invoking primary jurisdiction, the court opined that the issues of fact in the case are “within the conventional experience of judges,” turning as they do on whether the challenged claims could mislead a reasonable consumer.  Further, the court noted that any formal definition of “natural” by FDA would not dispose of the state law claims at issue.  Finally, the court stated that “FDA is unlikely to respond in a timely manner” to the court’s referral, citing as precedents FDA’s refusal to opine on whether high fructose corn syrup is “natural,” and the nine years the agency took to define “gluten-free.”

This is not the first court to decline to invoke primary jurisdiction under similar circumstances.  Nonetheless, by virtue of following on the heels of decisions more favorable to defense counsel, this decision is likely to be especially unwelcome.