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From Health Law Daily, April 9, 2019

Trail of mislabeled bread crumbs continues, dismissal denied

By Deborah Hammonds, J.D.

The claim regarding the statement that the product contained no trans fat within the nutrition facts section was preempted, but not the claim related to the statement elsewhere on the packaging.

While denying a motion to dismiss claims that labeling "0g Trans Fat" on bread crumb packaging was misleading and unlawful advertising, a federal district court in California found that a reasonable jury might conclude the statement constituted a misleading advertisement and unfair business practice (Hawkins v. The Kroger Company, April 4, 2019, Miller, J).

On remand from the Ninth Circuit (see Kroger trans fat labeling class action gets second chance, October 5, 2019), at issue were two different representations on Kroger’s bread crumbs: the statement of "0g Trans Fat" on the "Nutrition Facts" box, or nutrition label, and the statement of "0g Trans Fat" located on the front of the package. The complaint, filed under California law, alleged the bread crumbs contained partially hydrogenated oil (PHO), which the consumer asserted contain dangerous levels of trans fat. She contended Kroger misleadingly and unlawfully advertised the bread crumbs contained "0g Trans Fat" when, in fact, the product contained more than 0g but less than 0.5g Trans Fat. She also alleged there is no safe level of PHO and that consumption of PHO causes adverse effects to the body.

The court concluded that the claim based on the "0g Trans Fat" statement in the nutrition label was preempted because a state law claim premised on the nutrition label representation would make it impossible to comply with federal law which mandates that a content of less than 0.5 g trans fat must be disclosed as 0g. However, following established case law, the court concluded that the statement "0g Trans Fat," made outside the nutrition label, was not preempted because it did not impermissibly conflict with federal law.

While Kroger contended that the implementation of interim regulations permitting the use of PHO through 2020 deemed the use of PHO lawful, the court dismissed that argument as non-persuasive as there was no indication that Congress intended to preempt labeling claims. And Kroger’s contention that, per the primary jurisdiction doctrine, if the plaintiff had issues involving trans fat, she must pursue the appropriate administrative remedy was brushed aside as Kroger failed to articulate how the FDA’s expertise is, or would be, required to assess plaintiff’s claims. Further, the court found the plaintiff’s allegations were more than sufficient to support her claim that she was deceived, under the reasonable consumer standard and that a reasonable consumer could likely be deceived by the statement of "0g Trans Fat" on the packaging.

The case is No. 15cv2320 JM (BLM).

Attorneys: David Elliot (The Elliott Law Firm) for Shavonda Hawkins. Jacob M. Harper (Davis Wright Tremaine LLP) and Annmarie Mori (TroyGould PC) for The Kroger Co.

Companies: The Kroger Co.

MainStory: TopStory FDCActNews FoodNews LabelingNews PreemptionNews CaliforniaNews

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