Inappropriate Referral: The Use of Primary Jurisdiction in Food-Labeling Litigation

Abstract

Food system regulation is characterized by an active interchange between federal and state jurisdiction, and the regulatory scheme has been designed to permit the coincidence of multiple sets of regulators. This interplay is crucial because food system regulation has both individual and collective impact; it is hyper-local and broadly national. We can see the value of this dynamic federalism clearly in the area of food-labeling regulation, the goal of which is to ensure the availability of clear and accurate information about food so that consumers can make informed decisions. Food labeling is comprehensively regulated by the Food, Drug, and Cosmetic Act, but state law is only expressly preempted in regards to specific labeling issues. This leaves a role for state requirements -- legislative and common law -- that do not fall under this express preemption provision, as well as for state requirements that parallel federal requirements. I have argued elsewhere that the benefits of state law outweigh any potential costs in uniformity and efficiency that may result from its continued vitality in this area, and that Congress and the courts should resist the further federalization of food labeling regulation. There has been a large increase in food-labeling litigation over the last few years. Courts, particularly in the Northern District of California, which has been termed the “Food Court,” are struggling to draw lines between issues appropriate for determination under state law and those exclusively under the purview of the Food and Drug Administration. To negotiate this terrain, courts have turned with increasing frequency to the doctrine of primary jurisdiction in cases where preemption is not found. The doctrine of primary jurisdiction provides a mechanism for courts to delay resolving a case while an agency decides an issue that the court has determined is more appropriately within the agency’s competence. Is primary jurisdiction a productive tool in cases like this? Certain commentators have suggested that the use of this doctrine may lead to increased and beneficial dialogue between agencies and courts. In this Paper I argue that this is not the case. The ill-defined doctrine of primary jurisdiction has already led to inconsistent outcomes in food-labeling cases. Any determination of these issues will also be delayed by its use. Furthermore, referring these cases to the Food and Drug Administration thwarts the will of Congress, which preserved a dual regulatory system.