California Court of Appeal

Plaintiff alleges that defendant Safeway was culpable for misbranding its Lucerne brand of Greek yogurt as "yogurt" because the food's ingredients included milk protein concentrate (MPC), which is not included on the list of allowable optional ingredients for "yogurt" under the applicable regulation promulgated by the FDA. The trial court disagreed and entered judgment in favor of defendants, holding that MPC was an allowable ingredient in yogurt as the regulation had been stayed. The judgment is affirmed, where: 1) the regulation precluding the use of MPC in yogurt was stayed by the FDA shortly after it was enacted, in response to concerns that the rule was unduly restrictive; 2) the FDA informally agreed to allow the use of MPC in yogurt until the stay was resolved; and 3) the slow pace at which the FDA has moved in attempting to redraft a new regulation does not operate as a stealth reenactment of the stayed rule.

Appellate Information

• Decided 03/17/2015
• Published 03/17/2015

Judges

• Rylaarsdam

Court

• California Court of Appeal

Counsel