                                                                             FILED
                            NOT FOR PUBLICATION                              MAR 24 2016

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KATIE KANE; DARLA BOOTH;                          No. 14-15670
ARIANNA ROSALES, individually and
on behalf of all others similarly situated,       D.C. No. 5:12-cv-02425-LHK

              Plaintiffs - Appellants,
                                                  MEMORANDUM*
 v.

CHOBANI, LLC,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Lucy H. Koh, District Judge, Presiding

                       Argued and Submitted March 16, 2016
                            San Francisco, California

Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.

      Katie Kane, Arianna Rosales, and Darla Booth appeal the Rule 12(b)(6)

dismissal of their putative class action asserting claims against Chobani, Inc. in

connection with Chobani’s labeling and sale of yogurt. We have jurisdiction under



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
28 U.S.C. § 1291. We vacate the district court’s February 20, 2014 order granting

Chobani’s motion to dismiss the third amended complaint. We remand for entry of

an order staying proceedings until such time as the U.S. Food and Drug

Administration (FDA) completes its proceedings regarding the use of the terms

“evaporated cane juice” and “natural” in food labeling.

      We remand this action to the district court with instructions to enter a stay of

proceedings under the primary jurisdiction doctrine. Plaintiffs’ claims arise from

their assertions that Chobani deceptively and unlawfully labels its yogurt as

“natural” in violation of FDA regulations, and that Chobani deceptively and

unlawfully uses the term “evaporated cane juice” to describe its yogurt’s added

sugar ingredient. The delineation of the scope and permissible usage of the terms

“natural” and “evaporated cane juice” in connection with food products

“‘implicates technical and policy questions that should be addressed in the first

instance by the agency with regulatory authority over the relevant industry rather

than by the judicial branch.’” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753,

760 (9th Cir. 2015) (quoting Clark v. Time Warner Cable, 523 F.3d 1110, 1114

(9th Cir. 2008)); see also 21 C.F.R. § 101.1 et seq., 131.200(d)(2), 168.110,

168.130.




                                          2
      Although “[c]ommon sense tells us that . . . a court should not invoke

primary jurisdiction when the agency is aware of but has expressed no interest in

the subject matter of the litigation,” Astiana, 783 F.3d at 761, this is not such a

case. In November 2015, the FDA issued a request for comments regarding the

use of the term “natural” in connection with food product labeling. See Use of the

Term “Natural” in the Labeling of Human Food Products; Request for Information

and Comments, 80 Fed. Reg. 69,905 (Nov. 12, 2015). And, in July 2015, the FDA

represented that it expects to issue final guidance on the term “evaporated cane

juice” by the end of 2016. Letter from Leslie Kux, Assoc. Comm’r for Policy,

FDA, to Judge Edward Chen, U.S. Dist. Court for the N. Dist. of Cal. (July 8,

2015); see also Draft Guidance for Industry on Ingredients Declared as Evaporated

Cane Juice; Reopening of Comment Period; Request for Comments, Data, and

Information, 79 Fed. Reg. 12,507 (Mar. 5, 2014).

      Given the ongoing FDA proceedings regarding the terms “natural” and

“evaporated cane juice,” we conclude that resolution of this action will not be

needlessly delayed and that judicial resources will be conserved by staying these

proceedings. See Astiana, 783 F.3d at 760 (“[E]fficiency is the deciding factor in

whether to invoke primary jurisdiction.”) (citation omitted).




                                           3
      We VACATE and REMAND with instructions that the district court stay

this action pending resolution of the FDA’s “natural” and “evaporated cane juice”

proceedings.1

      Each party shall bear its own costs on appeal.




      1
         We note that the duration of the stay remains within the sound discretion of
the district court. If future events render the FDA’s apparently imminent
resolution of the “evaporated cane juice” and “natural” issues illusory, such events
should inform the district court’s exercise of its discretion. See Astiana, 783 F.3d
at 762.

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