In 2014, the Supreme Court decided POM Wonderful LLC v. The Coca-Cola Company, 134 S.Ct. 2228, which we have discussed in detail here, and here, and here. In POM Wonderful the Supreme Court held that “Congress did not intend the [Food, Drug and Cosmetic Act] FDCA to preclude Lanham Act suits like POM’s.” Since that decision, enterprising plaintiffs have tried to interpret the decision broadly to argue that post-POM Wonderful district courts could not dismiss Lanham Act claims that allege a violation of the FDCA.
The Ninth Circuit’s recent opinion in Astiana v. Hain Celestial Group, Inc., __ F.3d __ (9th Cir. 2015) confirms that district courts can and should defer to the expertise of the Food and Drug Administration (FDA) under the primary jurisdiction doctrine.
Before POM Wonderful, it was clear that “a private action brought under the Lanham Act may not be pursued when . . . the claim would require litigation of the alleged underlying FDCA violation in a circumstance where the FDA has not itself concluded that there was such a violation.” PhotoMedex, Inc. v. Irwin, 601 F.3d 919 (9th Cir. 2010).