On March 7, 2014, we reported that the FDA reopened the comment period as to whether Evaporated Cane Juice (“ECJ”) is an appropriate description to include on a food label.  At that time, at least one court had asked parties in a punitive class action to provide supplemental briefs regarding the effect of the FDA’s reopening of the comment period.  Reese v. Odwalla, Inc., No. 13-CV-947-YGR (N.D. Cal. 3/6/14) (directing parties to submit supplemental briefs).  A number of plaintiffs contend that ECJ is an improper term to include on a food label because it is nothing more than sugar.  Because federal regulations generally require labeling ingredients by their common or usual name, these plaintiffs argue that labels with “ECJ” violate federal requirements and California consumer protection laws.  See 21 U.S.C. § 341(i); 21 C.F.R. § 101.4(a)(1).

Following that supplemental briefing, the Reese court recently stayed the litigation while the FDA considers the propriety of using ECJ on labels.  That decision relied on the primary jurisdiction doctrine, which is familiar to defendants facing these types of food labeling class actions.  Admittedly, primary jurisdiction arguments have not often succeeded in these claims.  Indeed, the Reese court noted in its recent decision that other judges in the Northern District of California have refused to stay cases addressing this ECJ issue.  Reese v. Odwalla, Inc., No. 13-CV-947-YGR (N.D. Cal. 3/25/14) at 7.  Of course, the situation is now different in light of the FDA reopening the comment period.  Regardless of whether a court could properly determine whether ECJ is the common or usual name of this ingredient, “the FDA’s action clearly indicates that the agency is exercising its authority in this area.”  Id. at 8.  Not only is the issue of using ECJ on labels not settled, the relevant agency is actively considering the issue.

This seems to be the first instance of a court staying ECJ litigation based on the primary jurisdiction doctrine following the FDA’s reopening of the comment period.  To the extent other matters are pending, however, the doctrine should come into play and lead courts to await the FDA’s decision.

James Smith is a partner in Bryan Cave’s Phoenix office.  He is a member of the Class & Derivative Actions Client Service Group and the Food and Beverage Team.