FIRST DIVISION

BARNES, P. J.,

BROWN and HODGES, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

June 24, 2022

In the Court of Appeals of Georgia

A22A0170. SMITH v. HI-TECH PHARMACEUTICALS, INC.

BROWN, Judge.

Shawn Smith filed this single-count action against Hi-Tech Pharmaceuticals,

Inc., under the District of Columbia Consumer Procedures and Protection Act (“DC

CPPA”), alleging that the labels of certain Hi-Tech dietary supplements are

misleading to consumers. The trial court granted Hi-Tech’s motion for judgment on

the pleadings, concluding that Smith’s claims are preempted by the Food, Drug, and

Cosmetic Act (“FDCA”), 21 U.S.C. § 301 etseq., and that his complaint raisesissues

within the primary jurisdiction of the Food and Drug Administration (“FDA”), and

dismissed Smith’s complaint with prejudice. Smith appeals from this order. For the

following reasons, we reverse in part, affirmin part, vacate the judgment, and remand

the case to the trial court to dismiss Smith’s complaint without prejudice.
On appeal from a grant of judgment on the pleadings, we conduct

a de novo review of the trial court’s order to determine whether the

undisputed facts appearing from the pleadings entitle the movant to

judgment as a matter of law. The grant of a motion for judgment on the

pleadings under OCGA § 9-11-12 (c) is proper only where there is a

complete failure to state a cause of action or defense. For purposes of

the motion, all well-pleaded material allegations by the nonmovant are

taken as true, and all denials by the movant are taken as false. But the

trial court need not adopt a party’s legal conclusions based on these

facts.

(Citation and punctuation omitted.) BCM Constr. Group v. Williams, 353 Ga. App.

811, 811-812 (840 SE2d 51) (2020). “A motion for judgment on the pleadingsshould

be granted only if the moving party is clearly entitled to judgment.” (Citation and

punctuation omitted.) Polo Golf & Country Club Homeowners Assn. v. Cunard, 306

Ga. 788, 792 (2) (833 SE2d 505) (2019).

According to Smith’s complaint, he was a resident of the District of Columbia

who purchased Hi-Tech’s product, “Hypderdrive 3.0+,” which contains oxilofrine,

also called methylsynephrine.1“This purchase included the purpose of testing and

1 Smith originally filed a class action complaint in the Superior Court for the

District of Columbia, but the court granted Hi-Tech’smotion to dismissthe complaint

for lack of personal jurisdiction. Smith subsequently filed the instant action in the

Superior Court of Gwinnett County. 

2
evaluating whether Hypderdrive 3.0+ or any other product sold by [Hi-Tech] with

methylsynephrine have been unlawfully and deceptively sold[.]” Smith alleges that

Hi-Tech manufactures and distributes dietary supplementsin the United States which

contain methylsynephrine, which is “an unapproved drug ingredient” and “illegal

supplement ingredient,” and which may pose health risks to consumers. According

to the complaint, the FDA issued warning letters to seven companies regarding

products marketed as dietary supplements who list methylsynephrine as a dietary

ingredient because methylsynephrine does not meet the FDCA’s definition of a

dietary ingredient. Thus, Smith alleges, the inclusion of methylsynephrine in

Hypderdrive 3.0+ and other Hi-Tech products is a deceptive and unlawful trade

practice because it creates a tendency to mislead reasonable consumersin the District

of Columbia. 

Smith brought a claim under the DC CPPA, “act[ing] for the benefit of the

[g]eneral [p]ublic as a Private Attorney General,” claiming that Hi-Tech (a) failed to

state material facts regarding the product’s contents that tend to mislead by omitting

that methylsynephrine is an unapproved drug that has been linked to adverse health

events and omitting that consumption of the product in accordance with the label

3
includes an unapproved drug ingredient at concentrations or dosages suitable for

prescriptive medical purposes; (b) misrepresents a material fact in claiming that

Hypderdrive 3.0+ is a “‘synergistic blend of potent herbal derivatives’ which it is

not”; (c) “[u]ses innuendo or ambiguity as to a material fact regarding the product’s

contents, because consumers may confuse ‘methylsynephrine’ with ‘synephrine,’ a

legal supplement ingredient”; (d) sells consumer goods in a condition or manner not

consistent with that warranted by operation of the DC CPPA in that Hyperdrive 3.0+

is not merchantable; and (e) “sells consumer goods in a condition or manner not

consistent with operation or requirement of federal law.” Smith sought actual

damages, statutory damages, punitive damages, injunctive relief, and attorney feesfor

himself and all others similarly situated. 

Hi-Tech filed a motion for judgment on the pleadings, arguing that Smith’s

claims are impliedly preempted by the FDCA based on the United States Supreme

Court’s decision in Buckman Co. v. Plaintiffs’ Legal Committee, 531 U. S. 341 (121

SCt 1012, 148 LE2d 854) (2001). Hi-Tech alternatively argued that the trial court

should dismiss Smith’s claim in deference to the FDA under the doctrine of primary

jurisdiction. The trial court concluded that Smith’s complaint is preempted by federal

4
law and raises issues within the primary jurisdiction of the FDA and dismissed

Smith’s complaint with prejudice. 

Smith appeals from this order, and contends, in related enumerations of error,

that the trial court erred in concluding that his claims are impliedly preempted by the

FDCA and in finding that the doctrine of primary jurisdiction applies to his claims.

We conclude that Smith’s claims are not subject to preemption, either express or

implied, but do fall within the primary jurisdiction of the FDA.

1. Preemption. “The preemption doctrine is a product of the SupremacyClause,

see U. S. Const., Art. VI, Cl. 2, which invalidates state laws that interfere with, or are

contrary to, federal law.” (Citation and punctuation omitted.) Fox v. Norfolk S. Corp.,

342 Ga. App. 38, 43 (1) (802 SE2d 319) (2017). See also Reis v. OOIDA Risk

Retention Group, 303 Ga. 659, 660 (814 SE2d 338) (2018).

Whether federal statutes or regulations preempt state law is a question

of congressional intent. Congress — through federal laws and

regulations — may effectively preempt state law in three ways: (1)

express preemption; (2) field preemption (regulating the field so

extensively that Congress clearly intends the subject area to be

controlled only by federal law); and (3) implied (or conflict) preemption.

5
(Citation and punctuation omitted.) Gentry v. Volkswagen of America, 238 Ga. App.

785, 787 (2) (521 SE2d 13) (1999). “Express preemption is present when Congress’s

intent to preemptstate law is explicitly stated in the statute’slanguage.” (Citation and

punctuation omitted.) Canale v. Colgate-Palmolive Co., 258 FSupp.3d 312, 319 (II)

(B) (S.D. N.Y. 2017). “A court’s inquiry into the scope of a statute’s pre-emptive

effect is guided by the rule that the purpose of Congress is the ultimate touchstone in

every pre[ ]emption case.” (Citations and punctuation omitted.) Altria Group v. Good,

555 U. S. 70, 76 (II) (129 SCt 538, 172 LE2d 398) (2008). Whether federal law

preempts state law claims is reviewed de novo. Gentry, 238 Ga. App. at 786. With

this in mind, we turn to the federal statute at issue.

The Federal Food, Drug, and Cosmetic Act

The FDCA, 21 U.S.C. § 301 et seq., as amended by the Nutrition Labeling and

Education Act (“NLEA”), 21 U.S.C. § 343 et seq., governs the labeling of food,

including dietary supplements.

2

In 1994, Congress further amended the FDCA with

2

“The NLEA was passed to ‘clarify and to strengthen the Food and Drug

Administration’s legal authority to require nutrition labeling on foods, and to

establish the circumstances under which claims may be made about the nutrients in

foods.’” Nutritional Health Alliance v. Shalala, 144 F3d 220, 223 (I) (2nd Cir. 1998).

“Pursuant to that grant of authority, Congress tasked the FDA with establishing and

maintaining a uniformfederalscheme of food regulation to ensure thatfood islabeled

in a manner that does not mislead consumers.” Greenfield v. Yucatan Foods, 18

6
the Dietary Supplement Health and Education Act (“DSHEA”), Pub. L. No. 103-417,

108 Stat. 4325.3. “The NLEA and DSHEA together established a new category of

food products — specifically, dietary supplements — that have unique safety,

labeling, manufacturing, and other related standards.”Kroessler v.CVS HealthCorp.,

977 F3d 803, 808 (I) (9th Cir. 2020). See also 21 U.S.C. § 321 (ff) (“a dietary

supplement shall be deemed to be a food within the meaning of this chapter”).

“To ensure nationwide uniformity in labeling standards, Congress has

prohibited states from directly or indirectly establishing under any authority or

continuing in effect any labeling requirement for dietary supplements that is not

identical to the requirements articulated in § 343 (r). § 343-1 (a).” Ferrari v. Vitamin

Shoppe, No. CV 17-10475-GAO, 2022 WL 974048, at *2 (III) (A) (D. Mass. March

31, 2022). See also Kroessler, 977 F3d at 808 (I) (“Private plaintiffs may not bring

actions to enforce violations of the FDCA. Instead, private plaintiffs may bring

analogous state law claims as long as the FDCA does not preempt those claims.”)

(citations omitted). FDA regulations define the term “not identical to” as follows:

FSupp.3d 1371, 1373 (I) (b) (S.D. Fla. 2014). Hi-Tech asserts, in passing, that the

NLEA is “ultimately irrelevant to this case,” but fails to elaborate on this position. 

7
“Not identical to” does not refer to the specific wordsin the requirement

but instead means that the State requirement directly or indirectly

imposes obligations or contains provisions concerning the composition

or labeling of food, or concerning a food container, that: (i) Are not

imposed by or contained in the applicable provision [or regulation] . . .

; or (ii) Differ from those specifically imposed by or contained in the

applicable provision [or regulation.]

21 C.F.R. § 100.1 (c) (4). The preemption provision added by the NLEA “has been

repeatedly interpreted not to preempt requirements imposed by state law that

effectively parallel or mirror the relevant sections of the NLEA.” (Citation,

punctuation, and emphasis omitted.) Hughes v. Ester C Co., 99 FSupp.3d 278, 284

(III) (E.D. N.Y. 2015). Additionally, “a state statute mirroring its federal counterpart

does not impose any additional requirement merely by providing a damage remedy

for conduct that would otherwise violate federal law, even if the federal statute

provides no private right of action.” Ackerman v. Coca-Cola Co., No. CV-09-0395

(JG) (RML), 2010 WL 2925955, at *6 (E.D. N.Y. July 21, 2010), citing Bates v. Dow

Agrosciences, 544 U. S. 431, 432 (125 SCt 1788, 161 LE2d 687) (2005) (preemption

of additional requirements “does not preclude States from imposing different or

additional remedies”) (emphasis in original). “Where there is an express preemption

clause applicable to a provision of the FDCA, the Court must determine whether the

8
state law at issue falls within the scope of that preemption.” Sciortino v. Pepsico, 108

FSupp.3d 780, 798 (II) (C) (1) (N.D. Ca. 2015). And, “[i]n mapping the scope of a

pre[ ]emption clause, the Court typically must accept the reading that disfavors pre[

]emption.” Id., citing Altria, 555 U. S. at 77 (II). We now turn to the state law at issue,

the DC CPPA.

The District of Columbia Consumer Protection Procedures Act

The District of Columbia Consumer Protection Procedures Act

affords a panoply of strong remedies, including treble damages, punitive

damages and attorneys’ fees, to consumers who are victimized by

unlawful trade practices. The Act is construed and applied liberally and

establishes a consumer’s right to truthful information about consumer

goods and services that are purchased or received in the District of

Columbia.

(Citation and punctuation omitted.) Frankeny v. Dist. Hosp. Partners, 225 A3d 999,

1004 (II) (A) (D.C. Ct. App. 2020). The express purposes of the DC CPPA are to

(1) assure that a just mechanism exists to remedy all improper trade

practices and deter the continuing use of such practices; (2) promote,

through effective enforcement, fair business practices throughout the

community; and (3) educate consumers to demand high standards and

seek proper redress of grievances. D.C. Code § 28-3901 (b)[.]

9
(Punctuation omitted.) Price v. Independence Fed. Sav. Bank, 110 A3d 567, 573 (III)

(B) (D.C. Ct. App. 2015). “[T]he statute as amended expand[s] the potential plaintiff

class so as to permit representative actions on behalf of consumers, broadly defined

as‘the general public.’” (Citation and punctuation omitted.)Rotunda v. MarriottIntl.,

123 A3d 980, 984 (III) (D.C. Ct. App. 2015). The provisions pertinent to Smith’s

complaint provide:

It shall be a violation of this chapter for any person to engage in an

unfair or deceptive trade practice, whether or not any consumer isin fact

misled, deceived or damaged thereby, including to:

. . .

(e) misrepresent as to a material fact which has a tendency to

mislead; . . .

(f) fail to state a material fact if such failure tends to mislead;

(f-1) Use innuendo or ambiguity as to a material fact, which has

a tendency to mislead[.]

D.C. Code § 28-3904 (e), (f), (f-1). “For claims of misrepresentation, the statute

merely provides that it is a violation of the DC CPPA if the merchant

‘misrepresented’ or ‘failed to state’ a material fact.” Frankeny, 225 A3d at 1005 (II)

(A). See D.C. Code § 28-3904 (e) and (f). 

For purposes of § 28-3904 (e) or (f), a misrepresentation or omission is

‘material’ if a reasonable person would attach importance to its

10
existence or nonexistence in determining his or her choice of action in

the transaction or the maker of the representation knows or has reason

to know that the recipient likely regards the matter as important in

determining his or her choice of action.

(Citation and punctuation omitted.) Frankeny, 225 A3d at 1005 (II) (A). See also

Saucier v. Countrywide Home Loans, 64 A3d 428, 442 (D.C. Ct. App. 2013).

Express Preemption

Looking to the DC CPPA, asraised in Smith’s complaint, as well asthe FDCA,

as amended by the NLEA and DSHEA, we conclude that Smith’s claims are not

expressly preempted by 21 U.S.C. § 343-1 (a). 

The FDA has limited authority under the (FDCA) to regulate dietary

supplements, which include vitamin, botanical, enzyme, and amino acid

products. Unlike with drugs, the FDA does not pre-approve product

labels for dietary supplements. It, however, requires that the labels be

truthful and not misleading, 21 U.S.C. § 343 (r) (6) (B)[.]

Greenberg v. Target Corp., 985 F3d 650, 654 (I) (9th Cir. 2021). See also Ferrari,

Slip op. at *2 (III) (A) (“21 U.S.C. § 343 (r) places limits on health claims that may

be made on food and dietary supplement labels”) (citation and punctuation omitted).

According to FDA regulations, a supplement’s label is misleading if it

11
failsto reveal facts that are: (1) Material in light of other representations

made or suggested by statement, word, design, device or any

combination thereof; or (2) Material with respect to consequences which

may result from use of the article under: (i) The conditions prescribed

in such labeling or (ii) such conditions of use as are customary or usual.

21 C.F.R. § 1.21 (a). Thus, “if a supplement’s label recommends taking one capsule

per day, and that dose actually causes an increased risk of death — a material fact

‘with respect to consequences which may result from use of the article’ — the FDCA

would deem it misleading not to reveal that fact on the label.” (Citation omitted.)

Dachauer v. NBTY, Inc., 913 F3d 844, 849 (B) (9th Cir. 2019). If there are other

relevant federal requirements governing Hi-Tech’s product, i.e., provisions of the

FDCA, NLEA, or DSHEA, they must be compared to the requirement Smith seeks

to impose via state law. See Canale, 258 FSupp.3d at 320 (II) (B). Cf. Bimont v.

Unilever U.S., No. 14-CV-7749 (JPO), 2015 WL 5256988, at *4-5 (S.D. N.Y. Sept.

9, 2015) (both state and federal law generally forbid “‘misleading’ packaging of

dr[u]gs and cosmetics,” proper inquiry is whether Congress and/or FDA has

addressed specific subject matter of plaintiff’s claims). But as previously stated, the

FDA haslimited authority under the FDCA to regulate dietary supplements and does

not pre-approve product labels for dietary supplements. Greenberg, 985 F3d at 654

12
(I). And we have identified no other relevant provision governing dietary supplement

labels implicated by Smith’s claims apart from the requirement that they be truthful

and not misleading.

Here, Smith alleges that the product label is misleading under the DC CPPA

in that it fails to disclose that consumption of methylsynephrine in accordance with

the label can lead to adverse health events and would lead to consumption of

methylsynephrine at concentrations or dosages suitable for prescriptive medical

purposes, both of which are material misrepresentations or omissions under the

FDCA. See Dachauer, 913 F3d at 849 (B). Because the FDCA and the DC CPPA

have the same requirement in this respect, § 343-1 (a) (5) does not preempt these

particular claims. See id. See also Yeldo v. MusclePharm Corp., 290 FSupp.3d 702,

714 (III) (F) (E.D. Mich. 2017) (plaintiff’s claims under state law, alleging “‘false and

misleading’” dietary supplement labels and advertising, “parallel the FDCA’s

requirements” and therefore plaintiff’s claims are not preempted by the FDCA).

Smith also claimsthat the product label violates the DC CPPA in that it falsely

claims that Hypderdrive 3.0+ is a “‘synergistic blend of potent herbal derivatives’”

and lists methylsynephrine as a dietary ingredient when it does not meet the FDCA’s

13
definition of dietary ingredient or supplement.

3 Again, the state requirement

effectively parallels the federal requirement that the label not be misleading in that

it not misrepresent or omit a material fact. Compare D.C. Code § 28-3904 (e) and (f)

with 21 C.F.R. § 1.21 (a). Cf. Astiana v. Hain Celestial Group, 783 F3d 753, 757-758

(I) (9th Cir. 2015) (plaintiff’s claims that cosmetic label was false and misleading

were not expressly preempted by FDCA’s prohibition on state or local government

“‘establish[ing] or continu[ing] in effect any requirement for labeling or packaging

of a cosmetic that is different from or in addition to, or that is otherwise not identical

with’ federal rules”; plaintiff was not asking defendant “to modify or enhance any

aspect of its cosmetics labels that are required by federal law” but rather “claim[ing]

3

 The FDCA defines “dietary supplement” as

a product (other than tobacco) intended to supplement the diet that bears

or contains one or more of the following dietary ingredients:

(A) a vitamin;

(B) a mineral;

(C) an herb or other botanical;

(D) an amino acid;

(E) a dietary substance for use by man to supplement the diet by

increasing the total dietary intake; or

(F) a concentrate, metabolite, constituent, extract, or combination

of any ingredient described in clause (A), (B), (C), (D), or (E)[.]

21 U.S.C. § 321 (ff) (1).

14
deception as a result of advertising statements”). In sum, because Smith’s claims

under the DC CPPA mirror the FDCA requirement that labels be truthful and not

misleading, they escape express preemption. See Yeldo, 290 FSupp.3d at 714 (III) (F).

Having found that the FDCA, as amended by the NLEA, does not expressly preempt

Smith’s claims under the DC CPPA, we turn to the issue of implied preemption.

Implied Preemption

While the “existence of an express preemption clause does not necessarily

preclude the presence of implied preemption,” Irving v. Mazda Motor Corp., 136 F3d

764, 768 (I) (B) (11th Cir. 1998), “an express definition of the pre-emptive reach of

a statute ‘implies’ — i.e., supports a reasonable inference — that Congress did not

intend to pre-empt other matters. . . .” Freightliner Corp. v. Myrick, 514 U. S. 280,

288 (IV) (A) (115 SCt 1483, 131 LE2d 385) (1995). Moreover, the NLEA contains

an uncodified express savings clause: “The [NLEA]shall not be construed to preempt

any provision of State law, unless such provision is expressly preempted under [§

343-1(a)].” Pub. L. No. 101-535, § 6 (c) (1). See Hansen Beverage Co. v. Innovation

Ventures, No. 08-CV-1166-IEG (POR), 2009 WL 6597891, at *10 (III) (B) (1) (b)

(S.D. Cal. Dec. 23, 2009). Federal courts repeatedly have found that the NLEA’s

savings clause reflects that Congress disavowed any implied preemption. See, e.g.,

15
Sciortino, 108 FSupp.3d at 807 (II) (C) (1) (b); Brazil v. Dole Food Co., 935

FSupp.2d 947, 957 (III) (A) (2) (N.D. Cal. 2013); Lockwood v. ConAgra Foods, 597

FSupp.2d 1028, 1032 (I) (B) (1) (a) (N.D. Cal. 2009); Hitt v. Arizona Beverage Co.,

No. 08cv809WQH (POR), 2009 WL 449190, at *4 (I) (C) (ii) (S.D. Cal. Feb. 4,

2009). See also Farm Raised Salmon Cases, 42 Cal. 4th 1077, 1091 (II) (A) (175 P3d

1170) (2008).

Nonetheless, Hi-Tech urges usto adopt the trial court’s conclusion that Smith’s

claims are impliedly preempted by the FDCA because Smith, in essence, seeks to

enforce the FDCA. In support of this assertion, Hi-Tech points to the Supreme

Court’s holding in Buckman that “fraud on the FDA” claims are impliedly preempted

by the FDCA as amended by the Medical Device Amendments of 1976, 21 U.S.C. §

360c et seq., (“MDA”). 531 U. S. at 348 (II). However, Buckman involved implied

preemption under the MDA which is distinct from the NLEA.4 See Corbett v.

PharmaCare U.S., ___ FSupp.3d ___ (III) (B) (2) (S.D. Cal. 2021). See also

Gustavson v. Wrigley Sales Co., 961 FSupp.2d 1100, 1118 (III) (A) (2) (N.D. Cal.

2013). Compare Mink v. Smith &Nephew, 860 F3d 1319, 1330 (IV) (A) (2) (11th Cir.

4

In Buckman, the plaintiffs sued on behalf of those injured by the use of

orthopedic bone screws, claiming that the defendant made fraudulent representations

to the FDA in the course of obtaining approval to market the screws. 531 U. S. at 343.

16
2017) (applying Buckman to conclude that some of plaintiff’s claims involving a hip

replacement device were impliedly preempted by the FDCA as amended by the

MDA). Other cases cited by Hi-Tech involve medical devices, over-the-counter

drugs, or cosmetics, which are subject to stricter requirements, and/or do not

implicate the NLEA. See Mink, 860 F3d at 1325-1327 (III) (plaintiff’s failure to

report claim based on a duty to file a report with the FDA for medical device was

impliedly preempted by federal law; plaintiff’s manufacturing defect claiminvolving

medical device was not preempted); Borchenko v. L’Oreal USA, 389 FSupp.3d 769

(C.D. Cal. 2019) (cosmetics); In re Bayer Corp. Combination Aspirin Product Mktg.

& Sales Practices Litigation, 701 FSupp.2d 356 (E.D. N.Y. 2010) (drug); Riley v.

Cordis Corp., 625 FSupp.2d 769 (D. Minn. 2009) (medical device). See also

Imagenetix v. Frutarom USA, No. 12CV2823-GPC (WMC), 2013WL 6419674 (S.D.

Cal. Dec. 9, 2013). We decline to give Buckman the expansive reading urged by HiTech and adopted by the trial court in its order. Accordingly, the trial court erred in

finding that Smith’s claims are impliedly preempted by the FDCA.

2. Primary Jurisdiction. Smith contends that the trial court erred in dismissing

his claims based on the doctrine of primary jurisdiction. We disagree.

17
“Primary jurisdiction is a judicially created doctrine whereby a court of

competent jurisdiction may dismiss or stay an action pending a resolution of some

portion of the actions by an administrative agency.” (Citation and punctuation

omitted.) Smith v. GTE Corp., 236 F3d 1292, 1298 (I), n.3 (11th Cir. 2001). It is “a

prudential doctrine that permits courts to determine that an otherwise cognizable

claim 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.” (Citation and punctuation omitted.) Astiana, 783 F3d at 760

(II). “It is useful in instances where . . . courts do have jurisdiction over an issue, but

decide that a claim requires resolution of an issue of first impression, or of a

particularly complicated issue that Congress has committed to a regulatory agency.”

(Citation and punctuation omitted.) Reid v. Johnson &Johnson, 780 F3d 952, 966 (V)

(9th Cir. 2015). See also Boyes v. Shell Oil Products Co., 199 F3d 1260, 1265 (III)

(A) (11th Cir. 2000) (“[t]he main justificationsfor the rule of primary jurisdiction are

the expertise of the agency deferred to and the need for a uniform interpretation of a

statute or regulation”) (citation and punctuation omitted). Generally,

[c]ourts consider four factors when applying the primary jurisdiction

doctrine: (1) the need to resolve an issue that (2) has been placed by

18
Congress within the jurisdiction of an administrative body having

regulatory authority (3) pursuant to a statute that subjects an industry

activityto a comprehensive regulatory scheme that(4) requires expertise

or uniformity in administration. The four factors are not exclusive and

courts seem heavily influenced by a fifth factor in cases implicating

FDA jurisdiction: whether the FDA hasshown any interest in the issues

presented by the litigants.

(Citations and punctuation omitted.) Snyder v.Green Roads ofFlorida, 430 FSupp.3d

1297, 1307-1308 (III) (C) (iii) (S.D. Fla. 2020).

The federal “circuits are split over the standard of review of decisions whether

to recognize the primary jurisdiction of an administrative agency.” Southern Utah

Wilderness Alliance v. Bureau of Land Mgmt., 425 F3d 735, 750 (IV) (10th Cir.

2005). The Tenth Circuit along with the Fourth and District of Columbia Circuits

review decisionsregarding primary jurisdiction under an abuse of discretion standard.

See Nat. Tel. Coop. Assn. v. Exxon Mobil, 244 F3d 153, 156 (II) (D.C. Cir. 2001);

Environmental Technology Council v. Sierra Club, 98 F3d 774, 789 (II) (D) (4th Cir.

1996); Brumark Corp. v. Samson Resources Corp., 57 F3d 941, 947-948 (II) (10th

Cir. 1995). Other circuitsreview such decisions de novo. See, e.g., Newspaper Guild

of Salem v. Ottaway Newspapers, 79 F3d 1273, 1283 (III) (1st Cir. 1996); Intl.

Brotherhood of Teamsters v. American Delivery Svc. Co., 50 F3d 770, 773 (9th Cir.

19
1995); Nat. Communications Assn. v. American Tel. & Telegraph Co., 46 F3d 220,

222 (2d Cir. 1995). Based on Boyes, 199 F3d at 1265 (II), it seems that the Eleventh

Circuit Court of Appeals reviews decisions to abstain on the basis of the primary

jurisdiction doctrine for an abuse of discretion. The Supreme Court of Georgia has

not yet weighed in on the applicable standard of review, but has described primary

jurisdiction as a “discretionary doctrine.” Ga. Power Co. v. Cazier, 303 Ga. 820, 824

(3) (815 SE2d 922) (2018). Given this language, as well as the Eleventh Circuit’s

application of an abuse of discretion standard, we will review the trial court’s

decision to apply the primary jurisdiction doctrine in this case for an abuse of

discretion. 

With regard to primary jurisdiction, the trial court found asfollowsin its order:

Primary jurisdiction over the question whether methylsynephrine should

or should not be deemed a lawful dietary ingredient falls to the FDA. To

decide Plaintiff’s claim, this Court would have to weigh extensive,

conflicting scientific evidence to resolve issues that “have been placed

within the special competence” and expertise of the FDA. . . . The Court

exercises its discretion to dismiss the Complaint to defer to the FDA’s

primary jurisdiction. 

Two federal district courts confronting nearly identical issuesrecently invoked

the primary jurisdiction doctrine. See Quidera v. Blackstone Labs, No. 20-CV-80898,

20
2021 WL 4958789 (S.D. Fla. Mar. 8, 2021); Rosas v. Hi-Tech Pharmaceuticals, No.

CV 20-00433-DOC-DFM, 2020 WL 5361878 (S.D. Cal.July 29, 2020). In Rosas, the

plaintiffs brought suit against Hi-Tech under California state law after purchasing

various dietary supplement products containing three substances, including

methylsynephrine. Slip op. at *1-2 (I) (B). Hi-Tech filed a motion to dismiss the

plaintiffs’ claims, asserting primary jurisdiction among other grounds. Id. at *2 (I)

(B). The district court found that the FDA’s warning letters regarding these

substances did not constitute final agency action and thusthe FDA had not taken final

agency action to determine whether the three substances are safe for human

consumption. Id. at *3-4 (III) (A). The court further concluded that “[w]hether [the

three substances] constitute dietary supplements under DSHEA requires the

determination of technical and scientific questions best left to the FDA” as well as

uniformity in administration. (Citation and punctuation omitted.) Id. at *4-5 (III) (B).

In Quidera, the plaintiffs brought suit against a company distributing and

selling dietary supplements containing the stimulant DMHA, alleging, inter alia, that

the company failed to inform consumers that their products contained an illegal and

unsafe ingredient, failed to disclose the true nature of, illegality of, and danger

associated with DMHA, and marketed the products as dietary supplements but failed

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to inform consumers that the products are not, in fact, “‘Dietary Supplements’”

because they contain an unsafe food additive and a non-dietary ingredient, DMHA.

Slip op. at *1 (I). The company moved to dismiss on several grounds, including

primary jurisdiction, arguing that the FDA has not deemed DMHA illegal and the

plaintiffs’ claims would usurp the FDA’s authority to regulate dietary supplements

under the FDCA. Id. at *2 (I). The district court agreed, finding that the “FDA has

expressed interest in DMHA [in the form of warning letters] but has not taken final

agency action to determine whether DMHA is a dietary ingredient, whether it is safe

for human consumption and/or whether it is illegal.” Id. at *3 (III). Moreover,

determining based on science whether DMHA is safe or properly classified as a new

dietary ingredient, the court concluded, is a particularly complicated issue that

Congress has committed to the FDA. Id. at *3 (III). Accordingly, the district court

dismissed the plaintiffs’ complaint without prejudice. Id. at *4 (IV). 

Here, as in Rosas and Quidera, the complaint presents questions of whether

methylsynephrine is a dietary ingredient asthat termis defined by the FDCA, whether

consumption of methylsynephrine leadsto adverse health consequences or issafe for

human consumption, and the proper dosage, if any, of methylsynephrine. Such

questions involve the evaluation of conflicting scientific evidence in the complex

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areas of product and ingredient classification and health and safety— determinations

that the FDA is in a better position to make. See Quidera, Slip op. at *3 (III); Rosas,

Slip op. at *4-5 (III) (B). See also Astiana, 783 F3d at 761 (II) (“[d]etermining what

chemical compounds may be advertised as natural on cosmetic product labels is ‘a

particularly complicated issue that Congress has committed to’ the FDA” and thus

district court did not err in invoking primary jurisdiction); Braintree Laboratories v.

Nephro-Tech, No. 96-2459-JWL, 1997 WL 94237, at *7 (II) (B) (D. Kan. Feb. 26,

1997) (“it is not for this court to interpret and apply the statutory definition of ‘dietary

supplement’” but rather is an issue “reserved solely for resolution by the FDA”).

Smith contends that “the FDA has already weighed the ‘extensive, conflicting

scientific evidence’ and, with its expertise, determined that methylsynephrine [does

not qualify as a] dietary ingredient” and consequently issued warning letters.

However, “regulatory letters do not constitute final agency action. . . . The fact

remains that the FDA has not formally established its position.” (Citation and

punctuation omitted.) Colette v. CV Sciences, No. 2:19-CV-10227-VAP-JEM(x),

2020 WL 2739861, at *4 (III) (B) (C.D. Cal. May 22, 2020). See also Hi-Tech

Pharmaceuticals v. Hahn, No. CV 19-1268 (RBW), 2020 WL 3498588, at *5 (III)

(D.D.C. June 29, 2020) (FDA warning letters do not constitute final agency action).

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This weighs in favor of deferring to the jurisdiction of the FDA. See Canale, 258

FSupp.3d at 325 (II) (C) (3)-(4). Compare Jones v. ConAgra Foods, 912 FSupp.2d

889, 898 (III) (B) (N.D. Cal. 2012) (fact that various parties have repeatedly asked

the FDA to adopt formal rulemaking to define the word “natural” and the FDA has

declined to do so weighs against applying primary jurisdiction).

As pointed out in Dabish v. Brand New Energy, No. 16-CV-400-BAS(NLS),

2016 WL 7048319, at *4 (S.D. Cal. Dec. 5, 2016), a case relied on by Smith,

“because [primary jurisdiction] is a discretionary doctrine, the court may decline to

invoke the doctrine when deciding the issue is not outside the ability of the court.”

In this case, the trial court exercised its discretion in invoking the doctrine and

deferring to the FDA. Under the circumstances, we conclude that the trial court did

not abuse its discretion in doing so. However, given our holding in Division 1, the

trial court erred in dismissing Smith’s complaint with prejudice. See Smith, 236 F3d

at 1298 (I), n.3 (pursuant to the primary jurisdiction doctrine, a court may dismiss or

stay an action pending a resolution of some portion of the actions by an

administrative agency). Accordingly, we remand the case to the trial court for

consideration of whether a stay or dismissal without prejudice is the appropriate

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disposition pursuant to the primary jurisdiction doctrine. See Davel Communications

v. Qwest Corp., 460 F3d 1075, 1093 (V) (9th Cir. 2006).

Judgment affirmed in part and reversed in part, judgment vacated, and case

remanded with direction. Barnes, P. J., and Hodges, J., concur.

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