By Steve Gardner
In Astaina v. Hain Celestial Group, Inc. (download here), and just two days after a district court’s decision in Anderson v. Hain Celestial Group, Inc. (discussed here), the Ninth Circuit dealt Hain another blow to its efforts to trick consumers into buying products falsely called “natural,” this time involving cosmetics, not food.
The Ninth Circuit opinion is notable in two ways:
First, it rejects Hain’s argument that state consumer law prohibition of deceptive language (not required by FDA) on a label that was partly regulated by FDA was a “novel state labeling requirement” and thus preempted. This is a favorite argument of defendants, and it’s good to have an appellate finding of its speciousness.
Second, and of possibly more impact to other cases, the Court held that, if a court determines that the doctrine of primary jurisdiction applies, the proper action is generally a stay and not a dismissal (even without prejudice), because of the potential damage to an individual plaintiff (and even more so for a plaintiff class) if limitations were to run while the FDA considered things. The Court observed that the “purpose of referral to the FDA was not for the agency to adjudicate Astiana’s claims, but to provide expert advice that would be useful to the court in considering this lawsuit.”
Both of these points should be settled law, but that likely won't stop defendants in future cases from trying to pretend that they don't exist.