The Pathway to Primary Jurisdiction

Consumer fraud attorneys on both sides of the bar will be familiar with one of the oft-deployed defenses to claims against federally regulated products: primary jurisdiction. The country cousin of federal preemption, primary jurisdiction is the doctrine that permits a court to dismiss a complaint (without prejudice) or stay proceedings pending the resolution of an issue within the special competence of an administrative agency. In the context of food and beverages, that agency is often the Food and Drug Administration (FDA). Under one widely cited standard, courts consider four factors in deciding whether primary jurisdiction applies: "(1) the need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration." Syntek Semiconductor Co. v. Microchip Tech., Inc., 307 F.3d 775, 781 (9th Cir. 2002).