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Judge dismisses yogurt labeling lawsuit

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A Minnesota federal district court judge dismissed a class-action lawsuit against General Mills and Yoplait, Dec. 10, saying the U.S. Food & Drug Administration (FDA), and not the courts, should decide label requirements for yogurt.

Last April, Illinois resident Martin Taradejna filed the suit against General Mills and Yoplait, alleging the company’s Greek yogurt was improperly labeled because it contained milk protein concentrate (MPC). In her ruling, U.S. District Judge Susan Richard Nelson invoked the doctrine of "primary jurisdiction", finding FDA was best suited to handle the dispute.

According to the 13-page ruling, when FDA issued the standard of identity for yogurt in 1981, it proposed to limit “other optional ingredients” that could be included in yogurt to certain milk-derived ingredients (e.g., concentrated skim milk, nonfat dry milk, buttermilk, whey), sweeteners, flavorings, color additives, and stabilizers. That list did not specifically identify MPC.

However, in response to questions at an FDA milk seminar in 2004, a publicly available response answered “yes” to whether whey protein concentrate (WPC) and/or MPC be used as ingredients in yogurt to increase the nonfat solids content.

In 2009, the FDA issued a proposed rule on the standards of identity for yogurt. However, no public hearings have ever been held on the proposed rule, according to court documents.

Nelson also noted other litigation over yogurt labels is pending in other courts, with the potential for judicial inconsistency and lack of uniformity in establishing labeling requirements.

“Moreover, the FDA’s ultimate decision on the permitted ingredients in yogurt will ensure national uniformity in labeling, utilizing the Agency’s special expertise in this regard,” she wrote.“ The Agency’s unique role in ensuring such consistency and uniformity is particularly significant here, as several recently-filed yogurt lawsuits throughout the country involve the same or similar issues as found in the instant suit.

A federal class action false advertising lawsuit was filed Aug. 31, claiming Cabot Greek-Style Yogurt is not made in the authentic way using an expensive filtering system. Instead, Timothy Smith v. Cabot Creamery Cooperative, Inc. and Agri-Mark, Inc., Case No. 12-cv-4591, U.S. District Court, Northern District of California, alleges the product is thickened through the addition of whey protein concentrates and MPC.

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