Finding the plaintiffs’ state-law claims preempted, a federal court in California has dismissed a putative class action alleging that the Kroger Co. falsely labeled its margarine and graham crackers as “0g Trans Fat per serving” and “a Cholesterol Free Food,” when they actually contain various hydrogenated oils. Red v. The Kroger Co., No. 10-01025 (C.D. Cal., decided September 2, 2010). According to the court, the Food and Drug Administration has promulgated specific regulations on the use of these terms, and because the products at issue comply with the requirements under which the terms can be used, the plaintiffs’ claims are expressly preempted under the National Labeling and Education Act of 1990.

In the court’s words, “Plaintiffs cannot escape the fact that they seek to enjoin exactly what federal law expressly permits.” Alleging the violation of California consumer protection statues, the plaintiffs had sought an order compelling the defendant to (i) cease marketing and selling the products using misleading tactics, (ii) conduct a corrective advertising campaign, (iii) restore the amounts by which the company was unjustly enriched, and (iv) destroy all misleading and deceptive materials and products. The court also dismissed plaintiffs’ Lanham Act claims, finding that they lacked standing to pursue them, because they had not alleged a “commercial injury” and are not the defendant’s competitors.

The court granted the defendant’s motion to dismiss without leave for the plaintiffs to amend their complaint.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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