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Norton Rose Fulbright: Breadth Of Primary Jurisdiction Expanded In Class Actions

By Matthew Gurvitz

The doctrine of primary jurisdiction gained ground in false advertising litigation, as Judge Sammartino of the Southern District of California dismissed a putative class action against Kashi Company because FDA signaled that it was reevaluating draft guidance that served as a partial basis for the plaintiffs’ complaint.

In Saubers v. Kashi Co., 2014 WL 3908595 (S.D. Cal. Aug. 11, 2014), Judge Sammartino held that because the FDA is in the process of evaluating the alleged deceptive and misleading representation, “evaporated cane juice,” the doctrine of primary jurisdiction warranted dismissing the claims [enhanced opinion available to subscribers]. The Court held that the FDA’s draft guidance declaring the use of evaporated cane juice in product labeling to be deceptive and misleading is preliminary, non-binding and subject to revision.

In the case, six plaintiffs filed a class action complaint alleging that Kashi manufactures over 75 different food products that are “misbranded” because they list “evaporated cane juice” as an ingredient. Plaintiffs allege that “evaporated cane juice” is simply sugar, and Kashi misleads its consumers to believe its products have reduced sugar and are healthier. Plaintiffs based their complaint in part upon FDA’s 2009 informal guidance document stating that “evaporated cane juice” is not a common or usual name for any sweetener and is deceptive and misleading.

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