On May 9, 2013, the Third Circuit Court of Appeals issued a non-precedential opinion affirming a New Jersey District Court’s dismissal of plaintiff Thomas Young’s class action complaint against Johnson & Johnson (“J&J”) on preemption grounds. According to Plaintiff, J&J deceptively advertised its Benecol® Regular Spread and Benecol® Light Spread butter/margarine substitutes (collectively “Benecol”) as containing “NO TRANS FATS” despite the fact that the product was not completely free from trans fats. Plaintiff also alleged that J&J’s claim that Benecol was “Proven To Reduce Cholesterol” was also deceptive. Plaintiff filed a complaint asserting violations of the New Jersey Consumer Fraud Act, the New York General Business Law, breach of express warranties, breach of implied warranty of merchantability, and unjust enrichment. In dismissing Plaintiff’s claims, the District Court held that Plaintiff had not adequately pled an injury-in-fact and therefore lacked standing, and that Plaintiff’s claims were expressly preempted by the Food, Drug and Cosmetic Act (“FDCA”) as amended by the Nutrition Labeling and Education Act (“NLEA”).
As to Benecol’s “Trans Fat” claims, Plaintiff’s primary contention was that labeling Benecol as containing “NO TRANS FAT” was deceptive because Benecol was, in fact, not trans fat free because it contained a small amount of trans fats. In affirming the District Court’s decision, the Third Circuit noted that the FDA’s regulation pertaining to nutritional labeling of trans fats provides that “[i]f the serving contains less than 0.5 grams [of trans fat], the content, when declared, shall be expressed as zero.” Because Benecol® contains less than 0.5 grams of trans fat per serving, the court held that Benecol’s label “properly discloses that it contains ‘0g of trans fat’ per serving in the Nutrition Facts box.” The Third Circuit went on to note that although the regulations “do not specifically say a product can advertise itself as containing ‘NO TRANS FAT’ when it has an insignificant amount of fat, they do allow ‘nutrient content claim[s]’ such as claims that a product contains ‘no fat’ or ‘no saturated fat’ without reference to a per-serving limitation, provided that the product indeed contains less than 0.5 grams per serving.” Ultimately, the Third Circuit held that because Benecol® contained less than 0.5 grams of trans fat per serving, any claim that its “trans fat” labeling was deceptive was preempted by the FDA’s regulations. For similar reasons, the Third Circuit also held that Plaintiff’s allegation that Benecol’s claim that it was “Proven to Reduce Cholesterol” was preempted. According to the Third Circuit, Benecol’s® “Cholesterol Claims are authorized by FDA regulations and are not false or misleading. Because [Plaintiff]’s state law action seeks to impose standards that are not identical to those set forth in the regulations, it is expressly preempted by the NLEA as it relates to those claims.”