A California federal court has granted a stay awaiting guidance from the U.S. Food and Drug Administration (FDA) in a putative class action alleging that General Mills uses partially hydrogenated vegetable oils, which contain trans fat, in its baking mixes. Backus v. Gen. Mills, Inc., No. 15-1964 (N.D. Cal., order entered August 18, 2015).

After finding that the plaintiff had standing because he alleged economic and immediate physical injury, the court turned to his claims of unlawful and unfair business practices under California law and held that they were plausibly alleged. The public nuisance and implied warranty of merchantability claims were insufficient, the court found, because the plaintiff failed to show a public harm distinct from his own injury and he failed to allege “that the baking mixes were unfit for even the most basic degree of ordinary use.”

The court then granted General Mills’ motion to stay the continuing claims under the primary jurisdiction doctrine because it was “clear that the question of whether the amounts of trans fats that were present in General Mills’ baking mixes pose a significant safety risk to society is both an important question of first impression, and a complicated issue that has been committed to the FDA.” The four factors of primary jurisdiction were all met, the court noted, and further, FDA “explicitly encouraged the food industry to submit petitions for review of trans fats as a food additive, which General Mills has done, through its membership in the Grocery Manufacturers Association. [] This is not a case where the FDA has been silent on the question of whether it will resolve the issue; rather, the FDA set a compliance date for its final order in June of 2018, in order for it to review food additive petitions before that time.”

Details about the complaint appear in Issue 564 of this Update. The plaintiff has also filed trans fat putative class actions against Nestle USA over its coffee creamers and H.J. Heinz Co. over its frozen fries and tater tots. Additional information appears in Issue 569 of this Update.