The top three U.S. tuna companies have petitioned the U.S. Food and Drug Administration (FDA) “to amend the standard of identity for canned tuna” which will then address an issue that was raised in a lawsuit filed early this year against StarKist Co., at the federal court in Oakland, Calif.

StarKist, owner of StarKist Samoa cannery in Pago Pago, along with its competitors Bumble Bee Foods, LLC, and Chicken of the Sea International, which is owned by Asia based Tri-Union Seafoods, filed the ‘citizen petition’ in late 2011.

That petition is revealed in StarKist’s 33-page motion filed Apr. 18 at the Oakland federal court, opposing the civil complaint by California resident Patrick Hendricks, who accused the cannery of “negligent misrepresentation”, “unjust enrichment”, violating California consumer laws, and “fraud” with allegations that StarKist is under-filling its canned tuna products.

For example, the plaintiff alleges he purchased one or more 5-ounce cans of StarKist Chunk Light Tuna in Water, which “were underfilled and thus substantially underweight” and independent testing by a laboratory retained by the plaintiff’s attorney determined that the 5-ounce cans of Chunk Light Tuna in Water contain an average of only 2.35 ounces of pressed cake tuna when measured.

StarKist attorneys moved to the dismiss the complaint or any other class action suit pending against the Pittsburgh based company.

StarKist cited eight reasons for moving to dismiss the case; among them is that “under the primary jurisdiction doctrine, the court should defer to the Food and Drug Administration, which has unique expertise and resources suited to resolving the issues presented by Plaintiff’s claims, and which is currently in the process of considering a Citizens Petition addressing the same issues raised by Plaintiff’s claims.”

According to StarKist, the “complex [federal] regulation” that provides the sole basis of the plaintiff’s complaint was developed in 1957, at a time when tuna was customarily packed in three-piece cans rather than in the two-piece cans used today, according to court documents.

It also states that the pressed weight requirements constitute “standards of fill,” and are in turn incorporated into what is called under the federal Food, Drug & Cosmetic Act (FDCA) a “standard of identity” — a type of regulation that sets forth required characteristics of a food.

“Significantly, the standard of fill does not require that any information be communicated to consumers and does not correspond to any labeling requirement,” the defendant argued. “Rather, the regulation provides guidance to manufacturers and food inspectors as to what constitutes a well filled container. StarKist is not required to, and does not, include pressed weight figures on labels.”

Additionally, pressed weight is not used in connection with a standard of identity for any other canned food product in the United States, and is not used for canned tuna in any country except the United States, including countries of the European Union, the world’s leading consumer of canned tuna.

In its petition to the FDA, the three canned tuna companies asked the federal agency to amend the standard of fill provisions in a provision of FDCA and to adopt a “drained weight”, as opposed to a pressed weight, standard.

The food producers also requested that the regulation be amended to require that the principal display panel of the canned tuna label bear an accurate statement of the drained weight of the product.

“The FDA provides a forum far more suitable for resolving Plaintiff’s claims. The FDA’s broad authority to prosecute misleading labeling, and no less importantly, to decline enforcement in particular circumstances, is an instrumental part of the nationwide regulatory regime created to enforce the FDCA,” said StarKist.

“Dismissal under the primary jurisdiction doctrine is appropriate here,” the defendant states and reiterated that this issue is better left up to the FDA, who has yet to issue a decision on the citizen petition.

“Meanwhile, the FDA has recognized the idiosyncratic nature of the pressed weight provisions and has not enforced those provisions in nearly twenty years. Private tort litigation is plainly not the proper vehicle for setting federal policy with respect to those provisions. The primary jurisdiction doctrine allows the Court to send this dispute where it belongs: before the FDA,” said StarKist.

StarKist also argued that the entire suit should be dismissed because plaintiff claims are preempted by federal law; has failed to plead the elements of a claim for common law fraud or negligent misrepresentation; failed to plead the elements of a claim for breach of express or implied warranty; plaintiff’s claim for unjust enrichment fails because no such claim exists under governing state law; and plaintiff lacks standing to pursue claims based on products that he did not purchase.

A hearing on the StarKist motion for dismissal is set for June 18 before U.S. District Court Judge Yvonne Gonzalez Rogers and the plaintiff’s attorneys say it plans to oppose the defendant’s motion, with specific written arguments to be filed soon.