The opinion of the court was delivered by: Hillman, District Judge
This matter comes before the Court on Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint. For the reasons set forth below, Defendant's Motion will be granted in part and denied in part.
Plaintiffs, Thomas Mason and Molly E. Adams, filed their Second Amended Complaint on June 29, 2009, alleging counts for violation of the New Jersey Consumer Fraud Act ("NJCFA"), N.J.S.A. 56:8-1, et seq., negligent misrepresentation, intentional misrepresentation, and unjust enrichment against Defendant, The Coca-Cola Company. These claims are all premised on Plaintiffs' allegations that Defendant "promoted, advertised and marketed" its product "Diet Coke Plus," despite the fact that it had a misleading label that was in violation of the Federal Food & Drug Administration's ("FDA") rules and regulations. (Second Amended Complaint at ¶ 11.) Among other things, Plaintiffs allege that "the term 'Plus' connotes a more robust amount of vitamins and minerals in the product when, in fact, that was not the case at all." (Id. at ¶ 14.) Defendant now moves to dismiss Plaintiff's Second Amended Complaint.
Defendant asserts that this matter should be dismissed because the issues raised fall within the special competence of the FDA. The doctrine of primary jurisdiction applies where a claim "involves technical or policy considerations which are beyond the court's ordinary competence and within [an administrative] agency's field of expertise," and requires that the court refer the matter to the appropriate agency. MCI Telecommunications v. American Telephone & Telegraph, Inc., 496 F.2d 214, 220 (3d Cir. 1974); see also CSX Transp. Co. v. Novolog Bucks County, 502 F.3d 247, 253 (3d Cir. 2007); MCI Telecommunications v. Teleconcepts, Inc., 71 F.3d 1086, 1103 (3d Cir. 1995). The doctrine is intended to promote "uniformity and consistency in the regulation of a business entrusted to a particular agency, the utilization of an agency's specialized knowledge and insight gained through experience, and the exercise of administrative discretion in affecting regulatory policy entrusted to an agency." Ipco Safetely Corp. v. Worldcom, Inc., 944 F. Supp. 352, 356 (D.N.J. 1996).
"[T]he possibility that a conflict may arise if a court were to decide a matter inextricably intertwined with an intensive regulatory scheme requires judicial abstention in such cases." Torres-Hernandez v. CVT Prepaid Solutions, Inc., No. 08-1057-FLW, 2008 U.S.Dist. LEXIS 105413, at *8 (D.N.J. Dec. 9. 2008); see also Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 736 (3d Cir. 1983); American Telephone & Telegraph, Inc., 496 F.2d at 220 (finding that doctrine was created to "avoid conflict between the court and an administrative agency arising from either the court's lack of expertise with the subject matter of the agency's regulation or from contradictory rulings by the agency and the court"). This does not mean that a court must defer to an agency every time a cause of action implicates regulations. See The Business Edge Group, Inc. v. Champion Mortgage Company, Inc., 519 F.3d 150, 154 (3d Cir. 2007). Courts are quite capable of handling issues that can be resolved "using the plain language of the [regulations] and ordinary rules of construction." Id.
Whether the doctrine of primary jurisdiction applies is determined on a case-by-case basis. Global Naps, Inc. v. Bell Atlantic - New Jersey, Inc., 287 F. Supp. 2d 532, 549 (D.N.J. 2003). Although there is "no fixed formula for determining whether the doctrine of primary jurisdiction applied," courts may consider the following factors:
(1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency's particular field of expertise;
(2) whether the question at issue is particularly within the agency's discretion;
(3) whether there exists a substantial danger of ...