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Use of the Primary Jurisdiction Doctrine in a “Natural” cosmetics case

When should a court decide a case that has issues involving an area that Congress has already weighed in on?  In the case of cosmetics and FDA, when a lawsuit requires a court to decide an issue committed to FDA’s expertise without a clear indication of how FDA would view the issue, Judge Phyllis J. Hamilton in the Northern District of California (the Food Court) has found dismissal appropriate under the “primary Jurisdiction” doctrine.  This doctrine “allows courts to stay proceedings or to dismiss a complaint … pending the resolution of an issue within the special competence of an administrative agency….”

In Astiana v. Hain Celestial Group Inc., plaintiffs challenged cosmetics labeled as “all natural,” “pure natural,” and “pure, natural & organic,” but acknowledged that FDA has “no policy, informal or otherwise, regarding the use of the term ‘natural’ for cosmetics.”  Instead, the plaintiffs relied on the Food Drug and Cosmetics Act’s general prohibition of cosmetics labels that are “false or misleading in any particular” (FDCA, 21 U.S.C. § 362).  Although plaintiffs argued that the court did not need specific guidance from FDA and could itself decide whether the label was misleading, in November 2012 Judge Hamilton found that the absence of FDA rules would require the court to make an inappropriate, independent judgment, and declined to do so.  Will this play out in the same way for the myriad cases before the Food Court involving labeling of foods, or will the result be different because Astiana v. Hain involves a cosmetics product?

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Michelle Gillette