December 6, 2021

Volume XI, Number 340

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December 06, 2021

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December 03, 2021

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9th Circuit Upholds Dismissal of Trans Fat Lawsuit

On December 4, 2020, the 9th Circuit affirmed the District Court’s dismissal of a complaint brought by a consumer against Diamond Food, Inc. for claims arising out of her purchase of a popcorn product which contained partially hydrogenated oils (PHOs).

By way of background, in 2015 the FDA made a final determination that PHOs, which are the primary dietary source of artificial trans fat in processed foods, are not Generally Recognized as Safe (GRAS). Manufacturing of foods with PHOs was banned for most uses of PHOs after June 18, 2018, with food manufactured with PHOs prior to this date allowed to remain in the market until January 1, 2020. See PHO Final Determination Guidance.

Plaintiff alleged that she had been economically and physically harmed by purchasing popcorn with PHOs. The 9th Circuit disagreed and found that she had not alleged an injury, and that therefore she lacked standing to bring the action. In particular, the Court held that she had not been economically harmed because the labeling disclosed the presence of trans fat. Therefore, she could not have been said to have bargained for a product that was free of trans fat, nor, given the “firmly established” risk of trans fat at the time of her purchase, could she have been said to have paid more than the product was worth. The Court also rejected her arguments regarding her alleged past physical injury and prospective risk of physical injury from exposure to trans fat as speculative and unsupported by the evidence, in particular in light of the small quantities of trans fat that she alleged she consumed from the popcorn.

 

© 2021 Keller and Heckman LLPNational Law Review, Volume X, Number 343
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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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