From All One God Faith, Inc. v. Hain Celestial Group, Inc., 2011 U.S. Dist. LEXIS 108269 (N.D. Cal. Sept. 20, 2011):

A. Primary Jurisdiction Doctrine

The primary jurisdiction doctrine allows the Court, "under appropriate circumstances, [to] determine that the initial decisionmaking responsibility should be performed by the relevant agency rather than the courts." Syntek Semiconductor Co., Ltd v. Microchip Technology, Inc., 307 F.3d 775, 780 (9th Cir. 2002). The application of the doctrine does not imply that the court lacks subject-matter jurisdiction, but rather that the case "requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency." Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166, 1172 (9th Cir.2002). Although it is a discretionary question, courts applying the doctrine traditionally have found that "(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, 307 F.3d at 781. Where primary jurisdiction lies with an agency, the court may stay the case pending administrative action or dismiss it without prejudice. Davel Commc'n, Inc. v. Qwest Corp., 460 F.3d 1075, 1091 (9th Cir. 2006).

In its order of May 24, 2010, the Court concluded that the USDA had primary jurisdiction over the claims alleged in the TAC. Although the TAC does not invoke the NOP regulations explicitly, resolution of Plaintiff's claims "necessarily would require the Court to interpret and apply the NOP regulatory framework when determining questions such as what 'organically produced,' 'nonagricultural,' or 'synthetic' mean." Order, May 24, 2010 at 11. Noting that the NOSB had recommended formally the application of NOP standards to personal care products and that Plaintiff had a parallel administrative action pending before the USDA, the Court determined that "it would be inappropriate...to adjudicate Plaintiff's Lanham Act claim and impose a potentially conflicting set of standards." Id. Accordingly, the Court stayed the case "pending further action by the USDA." Id. at 12.

It is unclear how much progress the USDA has made since that order was issued toward addressing the issues relevant to this case. ***

While it is fair to say that the record is ambiguous, it appears that the USDA still is headed toward eventually promulgating applicable regulations. Certainly the agency has not explicitly declined to assert jurisdiction over either the subject matter or Plaintiff's administrative complaint. See Davel Commc'n., Inc., 460 F.3d at 1090 ("Unless and until the FCC declines to determine the scope of the Waiver Order, questions regarding that scope, including those at the core of this case, are within the agency's primary jurisdiction."); Owner-Operator Independent Drivers Ass'n, Inc. v. New Prime, Inc., 192 F.3d 778, 785-86 (8th Cir. 1999) ("When the agency declines to provide guidance or to commence a proceeding that might obviate the need for judicial action, the court can then proceed according to its own light.") (internal citations omitted). Without a clearer indication of the USDA's plans, the Court cannot conclude that the agency "has no intention of exercising its jurisdiction" over the issues at the heart of this lawsuit.

In addition, although the Court only need give the agency a "reasonable opportunity" to resolve an issue within its primary jurisdiction..., Plaintiff has cited no case holding that an eighteen-month delay in promulgating regulations or processing a complaint is unreasonable. Plaintiff points to several cases in which courts prospectively limited the duration of stays pending administrative action, but in each case the court allowed for an extension if needed. See Coyle v. Hornell Brewing Co., Civ. No. 08-02792, 2010 WL 2539386, *5 n.7 (D.N.J. June 15, 2010) (six-month stay which can be "enlarged" for good cause); PAC-West Telecomm, Inc. v. MCI Communications Servs., Inc., No. 1:10-cv-01051, 2011 WL 1087195 (C.D. Cal. March 23, 2011) (noting that the court cannot require the FCC to rule within the six-month stay period); Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 61 (2d. Cir 1994) (18-month stay pending BIA determination of Plaintiff's tribal status unless the agency or defendant can "show why the stay should not then be dissolved"). Moreover, these cases are distinguishable, as they concern well-established administrative processes. In contrast, the application of the NOP standards to personal care products is in flux, making Plaintiff's administrative complaint more difficult to resolve. Given that the Court twice has found that this case is within the USDA's primary jurisdiction and that the agency seems to be making progress, albeit slowly, towards resolving the relevant issues, it is premature to lift the stay at this time.

"Normally, if the court concludes that the dispute which forms the basis of the action is within the agency's primary jurisdiction, the case should be dismissed without prejudice so that the parties may pursue their administrative remedies." Syntek, 307 F.3d at 783. However, where "further judicial proceedings are contemplated, then jurisdiction should ordinarily be retained via a stay of proceedings." Davel Commc'n, Inc., 460 F.3d at 1091 (internal citations omitted). In addition, the Court may stay proceedings where dismissal would "unfairly disadvantage[]" the parties. Id. The factor most often considered in determining whether a party will be disadvantaged by dismissal is "whether there is a risk that the statute of limitations may run on the claims pending agency resolution of threshold issues." Id.