Metropolitan News-Enterprise


Wednesday, March 18, 2015


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C.A. Upholds Dismissal of Suit Over ‘Greek Yogurt’ Labeling




Absent definitive action by the Food and Drug Administration, it is not illegal to market a product containing milk protein concentrate as “yogurt,” the Fourth District Court of Appeal ruled yesterday.

Div. Three upheld a Riverside Superior Court judge’s ruling dismissing a proposed class action against Safeway, Inc. regarding its Lucerne brand of Greek yogurt.

The product commonly known as Greek yogurt in the United States is distinguished from regular yogurt by its thicker texture, caused by straining the product in order to remove whey. Some, but not the majority, of Greek yogurt brands use thickening agents not found in regular yogurt, such as milk protein concentrate, or MPC, which is what Ashley Tamas complained about in her lawsuit against Safeway.

Superior Court Judge Daniel A. Ottolia sustained Safeway’s demurrer to the complaint, brought under the Consumers Legal Remedies Act and the Unfair Competition Law, seeking declaratory and injunctive relief and restitution for all purchasers of the Lucerne product. Safeway successfully argued that the use of MPC in Greek yogurt does not make the product misbranded under any applicable regulation.

Justice William Rylaarsdam, writing for the Court of Appeal, agreed.

‘Standard of Identity’

The justice explained that the FDA has adopted a “standard of identity,” or SOI, for yogurt. To be sold as yogurt, a product must be made by culturing “cream, milk, partially skimmed milk, or skim milk….alone or in combination,” and may include “other optional ingredients” that include “[c]oncentrated skim milk, nonfat dry milk, buttermilk, whey, lactose, lactalbumins, lactoglobulins, or whey modified by partial or complete removal of lactose and/or minerals, to increase the nonfat solids content of the food.”

While Tamas argued that MPC is prohibited because it is not on the list, Rylaarsdam noted that the listing of the “optional ingredients” was stayed by the FDA in 1982, in response to public comments suggesting the rule was too restrictive, and that a new rule has not been adopted. The effect of the stay, the justice concluded, is not to create a more restrictive regime, as the plaintiff argued, but rather to permit the inclusion of any optional ingredient, such as MPC, that is not otherwise prohibited.

He cited documents of which the court had taken judicial notice, including a 2004 memorandum in which the FDA gave an affirmative answer to the question of whether MPC was permitted, because the rule that “would have precluded . . . MPC use, was one of several provisions of the standard of identity for yogurt that were stayed in 1982.”

Further Explanation

Then in 2009, Rylaarsdam pointed out, the FDA explained that the 27-year-old stay was still in effect, and that “[c]onsequently, cultured milk and yogurts may deviate from the relevant standards in the previously mentioned respects,” including the addition of MPC. 

“In the abstract, we conclude Safeway has the better of this argument,” the jurist wrote. “If Tamas’ view were accepted, the FDA’s undisputed power to stay a SOI in its entirety would result in a complete prohibition on the manufacture of the specified product.  No ingredients would be allowed.”

Rylaarsdam went on to reject the plaintiff’s argument that products containing MPC should not be marketed as yogurt as a matter of policy, in part because there is no standard definition or SOI as to what constitutes MPC.

“[T]he mere fact there are valid reasons why MPC might be excluded from the list of allowable ingredients in yogurt does not mean it is excluded,” the justice wrote. “In fact, the points Tamas raises sound like just the sort of concerns that are intended to be hashed out before the FDA, as part of its seemingly complicated analysis of which ingredients should be included (or excluded) in a newly enacted yogurt SOI.”

The case is Tamas v. Safeway, Inc., G050114.


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