Lawyers for class-action plaintiffs in the US often “piggyback” on the work of government regulators and prosecutors — swooping in to file class actions against the recipients of FDA warning letters or the targets of government enforcement proceedings. In some ways, they are to the administrative state what the pilot fish is to sharks. Not unlike the latter (in Melville’s words), they “lurk in the port of serrated teeth … and there find a haven when peril’s abroad … An asylum in jaws of the Fates!”
As discussed in a recent article, the U.S. Food and Drug Administration’s tentative determination to withdraw the generally recognized as safe (GRAS) status of partially hydrogenated oils (PHOs) opens the door to consumer class-action lawsuits involving foods containing artificial trans fats. Although the FDA has yet to finalize its 2013 proposal, class-action litigation over the marketing and safety of such products has already begun against food companies that continue to use PHOs in the present environment.
On June 2, a California man filed a proposed class action against ConAgra Foods, Inc. claiming that the company deceptively marketed its caramel popcorn snack “Crunch ‘n Munch” as “0g Trans Fat” when the product contains PHOs. Like similar class-action suits involving PHOs, plaintiff claims that artificial trans fats are a toxic carcinogen for which safe, low-cost alternatives exist; that PHOs are consequently banned as a food additive in some jurisdictions; and that the FDA is contemplating a ban on PHOs on the ground that they are unfit for use in food. Based on alleged violations of federal and California law, the suit seeks a monetary award for restitution, actual damages, punitive damages, costs, and attorney fees — on the theory that “Crunch ‘n Munch” is overpriced compared to similar products without PHOs — as well as injunctions that would bar the company from marketing “Crunch ‘n Munch” as “0g Trans Fat,” compel a corrective advertising campaign, and require the destruction of all misleading or misbranded products.
Plaintiffs bringing these types of claims face a number of challenges, however, even prior to disputes over class certification. To begin, unless and until the FDA finalizes its tentative determination, PHOs remain GRAS based on previous consistent and common usage, meaning that purchases by class members were lawful when made and under current law. In addition, plaintiffs suing in federal court must satisfy the constitutional standing requirement of a concrete and particularized “injury in fact,” whereas the typical injury claimed is an “increased risk” of future disease based on the limited consumption of trans fats in the defendants’ products. Finally, plaintiffs’ claims of deceptive labelling must overcome the impact of federally-mandated disclosure of PHOs in product labeling, as well as FDA regulations permitting products to be labelled as “0g Trans Fats” when they contain only certain small amounts.