Consumer Law

Get the lawsuit started: Farm-raised pink salmon case continues

By Rebecca Tushnet

Farm Raised Salmon Cases, 2008 WL 2070612 (Cal. App. 2 Dist.)

This class action alleges that defendants sold artificially colored farm-raised salmon to consumers without disclosing the artificial coloring. The California Supreme Court held that the FDCA didn?t preempt the claims. The case was remanded for consideration of whether plaintiffs stated a claim and whether the primary jurisdiction doctrine applied: did the FDA or the California Department of Health Services get the first crack at the dispute, as the trial court had held?

Under the primary jurisdiction doctrine, a claim may be stayed to allow an agency the chance to resolve some or all of the issues. It?s appropriate when the claim requires resolution of issues within the special competence of an administrative body. The doctrine is best applied when administrative action would allow courts to take advantage of administrative expertise and would ensure uniform application of regulatory laws. Courts should also consider the adequacy of an administrative remedy and the cost and delay to litigants from using the doctrine. If the issues are of a type ordinarily resolved by courts, an administrative agency has no particular expertise, and the applicable regulations aren?t complex, the doctrine doesn?t apply.

The court of appeals concluded that applying the doctrine was an abuse of discretion. The applicable regulations ?expressly and unequivocally? require the disclosure of artificial coloring agents. Determining whether the salmon contained artificial colors and whether the labels failed to disclose that fact is not complex and doesn?t require administrative expertise. To the contrary, those are ordinary fact questions. Nor does the FDA provide an administrative procedure to deal with these precise questions; in fact, the FDA itself can only enforce its misbranding authority by filing suit in court.

Further, the court of appeals concluded that plaintiffs alleged a violation of the CLRA (Consumer Legal Remedies Act), which prohibits unfair or deceptive acts or practices and is, by statute, to be liberally construed. The CLRA specifically prohibits ?Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have.? Liberally construed, displaying farm-raised salmon that was artificially colored to resemble wild salmon without disclosing the artificial coloring amounts to a ?represent[ation]? that the salmon had the same origin and characteristics as wild salmon.

Full post as published by 43(B)log on May 20, 2008 (boomark / email).