A California federal court recently dismissed a proposed class action over alleged trans fat in defendant's Cup Noodle products. See Guttmann v. Nissin Foods (USA) Co. Inc., No. 3:15-cv-00567 (N.D. Cal. 8/17/15). The reasoning may be interesting to our readers.
Plaintiff's complaint cited numerous studies that have associated the consumption of artificial trans-fat to increased risk of certain medical conditions such as cardiovascular heart disease, and alleged that there is ‘no safe level’ of artificial trans fat intake. While the case was pending, the Food and Drug Administration issued a final determination that partiallyhydrogenated oils are no longer “generally recognized as safe.” 80 Fed. Reg. 34650 (June 17, 2015). Pursuant to that determination, manufacturers must remove partially-hydrogenated oils from their products within three years.
Guttmann claims that he assumed all of Nissin’s noodle products were safe to consume, because of inadequate labeling. He also claimed he was economically harmed because he was deprived of the benefit of his bargain, having thought he got safe food when, in fact, he got unsafe food.
Guttmann was, however, a plaintiff in at least four other lawsuits regarding artificial trans-fat and food labeling, against The Quaker Oats Company, Hostess Brands, Inc., Ole Mexican Foods, and La Tapatia Tortilleria. Thus, he was was aware that (i) products could be labeled “0g Trans Fat” under FDA regulations if they contained less than 0.5 grams of trans-fat, (ii) partially-hydrogenated oils contained artificial trans-fat, (iii) he could check the ingredients labels on food products to see if they contained partially-hydrogenated oils, and (iv) artificial trans-fat was linked to health risks. It was undisputed that Nissin listed partially-hydrogenated oils among the ingredients on all of its product labels, and judicial notice was taken of the contents of the product labels. Thus, the court found that plaintiff should have been keenly aware of the alleged injury he might suffer by eating Nissin’s noodles, and he knew he could have avoided any such injury caused by Nissin by simply checking the product label. This fact was fatal to Guttmann’s claims.
Interesting procedural note: plaintiff argued that his litigation history was not contained within the pleadings, and so could not be considered in this motion to dismiss. Although allegations of fact in a complaint are accepted as true for the purposes of adjudicating a motion to dismiss, such allegations may be rejected if contradicted by matters properly subject to judicial notice. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
On the consumer fraud claim, the court noted an act or practice cannot be unfair within the meaning of California Code Section 17200 if it caused an “injury the [plaintiff] could reasonably have avoided.” Daugherty v. American Honda Motor Co., Inc., 144 Cal. App. 4th 824, 839 (2006). Since commencing his litigation campaign, plaintiff could reasonably have avoided any injury based on Nissin’s alleged use of artificial trans-fat by reading the nutrition-facts panel and deciding not to purchase or consume them based on the presence of partially-hydrogenated oil.
And on the implied warranty claim, the court noted it need not determine whether a typical consumer could have a claim for breach of the implied warranty of merchantability because Guttmann was not a typical consumer but is "a self-appointed inspector general roving the aisles of our supermarkets. He continues on a five-year litigation campaign against artificial trans-fat and partially-hydrogenated oil" and has admitted that he has inspected products for those ingredients before. Guttmann’s apparent refusal to inspect Nissin’s noodles for an alleged defect despite his extensive knowledge of and concern for this particular ingredient was fatal to his claim for breach of the implied warranty of merchantability.