Tamas

Ashley Tamas appeals from the judgment entered in favor of defendants Safeway, Inc., and Lucerne Foods, Inc. (collectively Safeway), after the trial court sustained a demurrer to Tamas’s proposed class action complaint without leave to amend. In her complaint, Tamas alleged Safeway was culpable for misbranding its Lucerne brand of Greek yogurt as “yogurt” because the food’s ingredients included “milk protein concentrate” (MPC), which is not included on the list of allowable optional ingredients for “yogurt” under the applicable regulation promulgated by the federal Food and Drug Administration (FDA). The trial court disagreed, concluding that MPC was an allowable ingredient in yogurt, as the restrictive regulation relied upon by Tamas had been stayed, and the FDA had informally agreed to allow the use of MPC in yogurt until the stay was resolved.

We affirm. The regulation relied upon by Tamas to preclude the use of MPC in yogurt is one that she admits was stayed by the FDA shortly after it was enacted, in response to concerns the rule was unduly restrictive. The glacial pace at which the FDA has moved in attempting to resolve those concerns and redraft a new formal regulation did…