The Ninth Circuit Court of Appeals has affirmed the dismissal of a putative class action filed against Dreyer’s Grand Ice Cream, Inc., alleging that the company misrepresented its products by labeling them as “0g Trans Fat” when they actually contain some trans fat per serving. Carrea v. Dreyer’s Grand Ice Cream, Inc., No. 11-15263 (9th Cir., decided April 5, 2012) (unpublished). According to the court, because the products contain less than 0.5 grams of trans fat per serving, “the Nutrition Facts panel must express this amount as zero” under federal law, and the “same rule applies to the statement” on the front-of-package label. “In essence,” said the court, “Carrea seeks to enjoin and declare unlawful the very statement that federal law permits and defines. Such relief would impose a burden through state law that is not identical to the requirements under section 343(r). These claims are therefore expressly preempted.”

The court also found that no reasonable consumer would believe, as plaintiff contended, that the company’s other labeling statements, “Original Sundae Cone,” “Original Vanilla” and “Classic,” implied that the product “is more wholesome or nutritious than competing products.” The court further opined that “no reasonable consumer is likely to think that ‘Original Vanilla’ refers to a natural ingredient when that term is adjacent to the phrase, ‘Artificially Flavored,’” or that “a reasonable consumer would be misled to think that an ice cream dessert, with ‘chocolate coating topped with nuts,’ is healthier than its competitors simply by virtue of these ‘Original’ and ‘Classic’ descriptors.” Additional details about the case appear in Issue 342 of this Update.