Opinion: Appellate courts should decide on FDA's primary jurisdiction

07/22/2013 | Forbes

The capacity of courts to decide in disputes that fall under the FDA's primary jurisdiction was put into question after two federal judges for the Northern District of California issued contradicting rulings in two food-mislabeling class actions. In Hood v. Wholesoy & Co., the judge said the FDA's position on the use of evaporated cane juice in yogurt was "not yet settled" and did not regard draft guidance and warning letters as standards. In Kane v. Chobani Inc., the judge ruled that draft guidance and warning letters did clearly spell out the FDA's position on evaporated cane juice, but she invoked the primary jurisdiction doctrine by deferring to the FDA's process of developing a yogurt Standard of Identity. The conflicting rulings show that the time may be closing in for the 9th U.S. Circuit Court of Appeals to decide on the primary jurisdiction doctrine, Rich Samp writes.

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