The opinion of the court was delivered by: Lois H. Goodman United States Magistrate Judge
This matter was opened to the Court by way of correspondence from counsel for Plaintiff and the proposed Class dated June 18, 2010, advising the Court of a case recently decided in this district involving issues similar to those raised in this case. At the Court's request, counsel for both parties submitted their positions with regard to that recent decision, and the impact, if any, that it has on the conduct of this case. For the reasons set forth below, this Court orders that this matter be stayed for a period of six months, and further orders the parties to prepare a form of order submitting the issue of whether high fructose corn syrup, as used in Snapple beverages, is an all natural ingredient.
In Coyle v. Hornell Brewing Co, 08-2797 (JBS) (D.N.J. June 15, 2010) ("Coyle"), the plaintiff, Lauren Coyle, on her own behalf and on behalf of others similarly situated, challenges the labeling of the defendants' Arizona Iced Tea beverage as misleading because it contains the assertion that the product is "100% Natural." As in this case, the plaintiff in Coyle contends that because the beverage contains high fructose corn syrup ("HFCS"), it is not all natural. The defendants in Coyle moved to dismiss the complaint, arguing, inter alia, that the Court lacked primary jurisdiction over the dispute, and that the case should be referred to the United States Food and Drug Administration (the "FDA") for a determination as to whether HFCS in the product at issue can be classified as all natural or not.
In an opinion authored by the Hon. Jerome B. Simandle, U.S.D.J., the court engaged in a thoughtful and comprehensive discussion of the role of the FDA in making such determinations. The court recognized that the FDA has followed a policy of considering whether an ingredient is "natural" on a case by case basis, Coyle at 7, and that the FDA has made no such determination with regard to HFCS.
Accordingly, the court considered whether to apply the doctrine of primary jurisdiction, noting that it is within a court's discretion to either stay or dismiss a complaint if the doctrine applies. Coyle at 8-9. The court looked at the four factors typically considered in determining whether to apply primary jurisdiction:
(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 inconsistent rulings;
(4) whether a prior application to the agency has been made.
Coyle at 8-9 (quoting Clark v Actavis Group HF, 567 F. Supp. 2d 711, 715 (D.N.J. 2008)) (staying the proceeding, based upon a finding that all four factors had been met and primary jurisdiction therefore applied to issue relating to recall of medication).
The Coyle court found that all four factors relating to whether HFCS is all natural have been met. Coyle at 10. In so finding, Judge Simandle acknowledged that federal judges are certainly capable of making determinations of this kind, but then reasoned that "how a particular enzyme or fixing agent affects a substance's qualification as 'natural'" is not "within the conventional experience of judges." Coyle at 10-11. Such a determination is, however, within the discretion of the FDA. Id. Furthermore, and perhaps most important is the risk that different courts would reach different decisions on this issue, given the number of such cases currently pending. Id. at 12. Finally, the court noted that no prior application on this issue had been made by the court or the plaintiff. Id. at 13. As a result, the court exercised its discretion to stay the action and refer to the FDA the issue of whether HFCS is in fact a natural ingredient.
By letters dated June 18, 2010 and June 29, 2010, counsel for both parties in this case referred the Coyle decision to this Court for its consideration. In its letter dated June 29, 2010, Defendant also referred the Court to the recent decision issued by the Southern District of New York in Weiner v. Snapple Beverage Corp., 07-8742 (DLC) (S.D.N.Y. June 22, 2010). As in the Coyle case, the issues in Weiner bear a strong resemblance to those raised by Plaintiff here. In a one page Order, Judge Cote of the Southern District declined to stay the proceeding, finding that various pending motions, including a motion for class certification and various Daubert motions, were ripe for adjudication and did not depend on any determination by the FDA.
During a telephone conference conducted on June 30, 2010, the Court invited counsel in this case to advise the Court of their respective positions with regard to whether a stay and a referral to the FDA is appropriate in this case for the same reasons as those set out by Judge Simandle in Coyle. Counsel made their submissions on July 9, 2010. [Docket Entry Nos. 125, 126]. Both parties submitted that as in Weiner, the motions for class certification and various Daubert motions had been filed and were fully briefed. Both parties contend that these motions can be decided without a determination by the FDA as to whether HFCS is all natural or not.
Neither submitted that any prejudice would result from taking the path chosen in Coyle, other than the resources expended in briefing the pending motions. Both parties further recognized that whether a stay ...