As my colleague aptly noted in a prior post, courts across the United States have seen an ever-growing number of food labeling class actions over the past few years. A recent decision in the Northern District of California granting in part and denying in part a motion to dismiss concerns yet another case in this category, Guttmann v. Nissin Foods (U.S.A.) Company, Inc., No. 3:15-cv-00567. The plaintiff, a repeat player in litigation regarding artificial trans-fat, claims that Cup Noodles products manufactured by defendant Nissin Foods (U.S.A.) Company, Inc. (“Nissin”) contained trans-fats despite misleading claims on product labels.
At issue was the fact that although all of the noodle products contained partially-hydrogenated oils (and listed those oils among the ingredients), the nutrition-facts panel on each of the product labels included the indication “Trans Fat: 0g.” Several of the products also included icons on the front labels that described the product as containing “0g Trans Fat.” Order at 2. Plaintiff claimed that the “0g Trans Fat” icon on the product’s front label was misleading and violated California laws. Nissin moved to dismiss and argued that plaintiff’s mislabeling claims were preempted by federal regulation.
As the court explained, “nutrition facts,” statements about a food product’s nutrient contents in the nutrition-facts panel, and “nutrient-content claims,” statements about a food product’s nutrient contents outside of the nutrition-facts panel, are both regulated by the U.S. Food and Drug Administration (“FDA”). Pursuant to those regulations, if a manufacturer chooses to declare trans-fat content in the nutrition-facts panel, for a serving size that contains less than 0.5 grams of trans-fat, the content must be expressed as zero. 21 C.F.R. 101.9(c)(2)(ii). “Express” nutrient-content claims are permitted by regulation provided they are “not false or misleading in any respect.” 21 C.F.R. 101.13(i)(3).
Plaintiff argued that his state law claims based on labeling were not preempted by federal regulation because Nissin’s nutrient-content claim on the product’s front label was misleading. The court disagreed, citing as precedent Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111 (N.D. Cal. 2010), where it was held that, because the FDA had already determined that “there is no nutritional difference between rounded and unrounded values of a nutrient in a food” (58 Fed. Reg. 44020-01 at 44024 (Aug. 18, 1993)), “use of the unrounded value could not be misleading when used as an express nutrient-content claim.” Order at 4.
As further justification for preemption, the court reasoned that finding the “0g Trans Fat” icon on the product’s front label misleading while federal regulation requires Nissin to declare the product’s trans-fat content as zero in the nutrition-facts panel would lead to trans-fat content being expressed in two different ways on the same product, a confusing situation for the average consumer. As the court stated, “[t]o permit state-law claims based on a “0g Trans Fat” nutrient-content claim while the FDA required trans-fat to be declared as zero in the nutrition-facts panel would compel such a discrepancy.” Order at 5.
Notably, although plaintiff’s mislabeling claims were preempted, his health claims based on California Unfair Competition Law and breach of implied warranty of merchantability survived the motion to dismiss. Adding to the intrigue, while the motion was pending, the FDA issued a final determination that partially-hydrogenated oils are no longer “generally recognized as safe” and giving manufacturers three years to remove partially-hydrogenated oils from their products. 80 Fed. Reg. 34650 (June 17, 2015). Nonetheless, this decision represents a logical application of the federal preemption doctrine in the food labeling arena. We will continue to monitor for important developments.