General Mills Trans Fat Case Stayed for FDA Guidance
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.
Issue 576
