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Friday, October 5, 2018


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Ninth Circuit:

Trans Fat Mislabeling Suit Revived, No Preemption by FDA Rules


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reinstated an action against The Kroger Company based on its front label on bread crumbs bearing the representation.”“0g Trans Fat” when, in truth, the product does contain trans fat. The fact that federal law requires that statement in the mandatory nutrition facts panel where there is less than 0.5 grams of trans fat in a product does not preclude an action under California law based on placing the false representation elsewhere on the package, the court held.


A putative class action against The Kroger Company for labeling its bread crumbs as containing “0g Trans Fat per serving” when the product does contain trans fat should not have been dismissed by the District Court, the Ninth U.S. Circuit Court of Appeals said yesterday, holding that Food and Drug Administration regulations do not preclude a consumers’ action under California law.

The opinion was written by Senior District Judge Frederic Block of the Eastern District of New York, sitting by designation.

Senior District Court Judge Jeffrey T. Miller of the Southern District of California dismissed the action against The Kroger Company, which owns the Compton-headquartered Ralphs grocery store chain. The named plaintiff, Shavonda Hawkins, sued the company after years of buying Kroger Bread Crumbs at Ralphs, asserting that the “0g Trans Fat” claim was misleading, in contravention of California law.

She sued under the state Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, well as asserting causes of action under common law.

The Food and Drug Administration’s regulations require that foods containing less than 0.5 grams of trans fat round that number down to zero grams in the “nutrition facts panel” on the product, the inclusion of which is mandated by the Food, Drug, and Cosmetic Act (“FDCA”).

Miller ruled that Hawkins’ claim for the misleading labeling was preempted by that rule.

Nutrient Content Claims

Block wrote:

“At the time Hawkins made the purchases, the relevant regulation provided that within the Nutrition Facts Panel, ‘[i]f the serving contains less than 0.5 gram, the content shall be expressed as zero.’ 21 C.F.R. §101.9(c)(2)(ii) (2015). Therefore, the claim “0g Trans Fat per serving” was not only permitted within the panel, but mandated. However, since, under §101.13(c), a statement as to the amount of a nutrient mandated inside the Nutrition Facts Panel is not necessarily permitted by the FDCA elsewhere on the packaging, further analysis is required to determine if the FDCA allows the same ‘0g Trans Fat per serving’ claim elsewhere on the label. The district court erred by not performing this analysis.”

The jurist cited Reid v. Johnson & Johnson, a 2015 Ninth Circuit opinion dealing with a similar claim. In that decision, the court noted that a nutrition content claim expressing the amount of a nutrient within a food is permitted so long as “it is not false or misleading in any respect.”

He continued:

“As in Reid, we have an expressed nutrient content claim that the product does not contain trans fat. Also as in Reid, the manufacturer was required to state that the product had ‘0g trans fat per serving’ within the Nutrition Facts Panel. And, just as in Reid, because of §101.13(c), this requirement did not give the manufacturer license to make the same claim elsewhere on the product, and the rest of the product labeling was subject to the rules governing nutrition content claims, including that the claim not be ‘false or misleading in any way.’ ”

Defendant’s Distinction

The defendant argued that Reid was distinguishable because in that case, the product advertised “No Trans Fat” while the label on the Kroger breadcrumbs advertised “0g of Trans Fat,” the same phrasing required on the nutrition facts panel.

At oral argument in December 2017, Circuit Judge Stephen Reinhardt (since deceased) focused on the “0g” term. He told San Diego attorney Gregory S. Weston, counsel for Hawkins:

“I have difficulty finding something false and misleading as a statement of fact when the same statement of fact is not false or misleading on the other side of the package.”

Weston replied:

“Well, that is indeed what our regulatory scheme says….”

(Reinhardt died in March of this year; Circuit Judge Marsha S. Berzon replaced him on the panel.)

Block wrote:

“It makes no difference that here the label outside the Nutrition Fact Panel stated that the product had ‘0g Trans Fat,’ whereas in Reid it was ‘No Trans Fat.’ Just as in Reid, a consumer reading the label could be misled into believing that the product was free of trans fat.”

Plaintiff Alleged Standing

Block noted that California law requires a plaintiff to allege his or her reliance on a misleading label in order to have standing under the Unfair Competition Law or the False Advertising Law. He declared:

“Hawkins alleges that she relied upon the label and would not have bought the product without the misrepresentation….

“In holding that Hawkins did not plead reliance, the district court misread Hawkins’s complaint. It interpreted the complaint as alleging that she did not read the ‘0g Trans Fat per serving’ product label until August 2015, fifteen years after she began purchasing the product. However, the paragraph cited by the district court to support its conclusion reads, ‘Plaintiff first discovered Defendant’s unlawful acts described herein in August 2015, when she learned that Kroger Bread Crumbs contained artificial trans fat....’ Compl. ¶ 74 (emphases added). This paragraph does not allege that she first read the label in August 2015; it alleges she first discovered the label was misleading on that date. The district court did not address the three paragraphs where Hawkins concretely alleged that she relied on the label.”

Block pointed out:

“Trans fat has become increasingly recognized as a dangerous substance and a leading cause of numerous serious ailments, including heart disease and diabetes.”

Hawkins also contended in her complaint that under California law, trans fats are unlawfully included in food products sold in the state. Miller did not address that claim.

“[W]e leave it to the district court on remand to decide in the first instance to what extent, if at all, the state law use claims are federally preempted,” Block wrote.

The opinion also left it up to Miller to determine “the persuasive value and relevance” of an  Aug. 10 “non-precedential” memorandum decision of the Ninth Circuit in affirming the dismissal of  Hawkins’s action challenging the use of partially hydrogenated oil in foods.

Hawkins has indicated that on remand of the action against Kroger, she would not pursue injunctive relief, which she sought in her complaint, because company has ceased representing that the bread crumbs contain  “0g of Trans Fat” other than in the nutrition facts panel.

The case is Hawkins v. The Kroger Company, No. 16-55532.

Kroger was represented on appeal by Jacob M. Harper of Davis Wright Tremaine LLP in Los Angeles.


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