In This Issue:

- Recent Significant Developments and Rulings

..Court Trims Frito-Lay “All Natural” MDL But Rejects Preemption and Primary Jurisdiction Defenses

..Court Trims Claims in Gerber Baby Food Labeling Suit

..Settlement Approved in Kellogg’s Brain-Boosting Cereal Advertising Class Action

..Court Allows ConAgra’s Butter Labeling Suit to Proceed

..Court Refuses to Enjoin New Meat Labeling Regulations

..Court Allows Ensure Health Shakes Deception by Omission Claim to Proceed

- NEW FILINGS

- Excerpt from Court Trims Frito-Lay “All Natural” MDL But Rejects Preemption and Primary Jurisdiction Defenses:

In In re Frito-Lay North America, Inc. All Natural Litigation, No. 1:12-md-02413(E.D.N.Y.), a federal judge in New York trimmed several claims in a multidistrict case accusing Frito-Lay of deceptively labeling as “all natural” various brands of chips and dips made with genetically modified organisms. The court dismissed federal Magnuson-Moss Warranty Act claims, state warranty claims under Florida and New York law, and intentional misrepresentations claims under Florida, New York, and California law. The court also dismissed PepsiCo from the suit entirely, saying it cannot be held liable in its capacity as Frito-Lay’s parent. The court did, however, allow some California and Florida consumer protection claims to proceed. The court rejected Frito-Lay’s preemption argument, finding that FDA’s nonbinding guidance on the meaning of the term “natural” is not entitled to preemptive effect. The court also refused to dismiss claims based on products the named plaintiffs did not buy, concluding this is an issue of “class standing” that should be addressed at the class certification stage. Finally, the court found the case fell within “the traditional realm of judicial competence” and was not barred by the primary jurisdiction doctrine. The court noted that other district courts have declined to invoke the primary jurisdiction doctrine in other recent “natural” labeling cases and that “even if the FDA were to formally define the term ‘natural,’ it ‘would not dispose of plaintiffs’ state law claims.”