DAVID BIDERMAN: 'All natural’ class actions should be stayed pending an FDA determination
Finally we caught up with David Biderman, a partner in Perkins Coie’s Consumer Class Action Defense practice.
What regulatory issues will be top of mind in 2016?
The FDA request for comments on use of the term ’natural’ on food labeling. The comment period closes February 10, 2016. In our view, the ‘all natural’ class actions should be stayed pending the FDA determination, which could result in rule making defining the meaning of “natural” and would affect the hundreds of pending “all natural” cases. A determination would ultimately provide certainty for food manufacturers over the term all natural.
The Further action and submission on the FDA’s decision on GRAS status for PHO’s and the pending Food Additive Petition. The FDA just made clear existing PHO products will not be deemed unsafe pending the ruling on the petition and the compliance date. As you know cases have been filed against manufacturers using PHO’s already. However, we believe the doctrine of primary jurisdiction and this FDA regulatory pronouncement should stop such cases.
Can you cite a case that might change the food litigation landscape?
Key cases will be the Ninth Circuit’s ruling on a trio of “all natural” class certification cases on appeal from the district courts. These cases will give the Ninth Circuit to address consumer class action certification issues in food cases on virtually all of the significant elements of class certification… These cases will help determine how receptive courts here in California—the home of the food court—are to these consumer class actions.
Any other thoughts?
We predict continued litigation at the same pace as in the past. Plaintiff lawyers will look to expand to different areas and food manufacturers must be aware that food labelling decisions not only are subject to regulatory oversight but also to the hawk-eyed scrutiny of consumer class action lawyers.
Click HERE to read our CEO vox pop on natural claims.
