Emboldened by the promise of easy fee recovery, plaintiffs’ attorneys have filed more than 300 food-labeling class actions since 2014, many in California. These lawsuits challenge the use of certain food additives (e.g., partially hydrogenated oils, or PHOs) and attack the allegedly misleading use of terms such as “natural” or “evaporated cane juice” (ECJ) on food-product labels.

The uncertainty of litigation has led consumer advocates and food manufacturers to turn to the U.S. Food and Drug Administration (FDA) for guidance. FDA’s subsequent decision to weigh in on some of the issues raised in food class actions implicates the primary jurisdiction doctrine. A recent ruling by the U.S. Court of Appeals for the Ninth Circuit signals the doctrine’s resurgence in this context, as well as the limitations and implications of its use as a defense strategy.  Click here to read more.