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Consumer Fraud Appellate Court Creates Headaches for Food Manufacturers

Garcia & Artigliere

Many people find nutrition to be confusing enough already, but a recent circuit court decision has made it a little more confounding.

In March, the U.S. Court of Appeals for the Ninth Circuit handed down its opinion in a case regarding the familiar Nutrition Facts label — the panel on all packaged food items providing a breakdown of fats, carbohydrates, protein, and other food components — and its relationship to marketing-related phrases used on food packaging. The case, Reid v. Johnson & Johnson, centers around consumer fraud claims related to the vegetable oil-based spread Benecol®, whose label states that it includes “No Trans Fat,” notes.

The product actually does contain trans fat, but FDA regulations dictate that when the amount is less than 0.5 grams per serving, the label must state the amount as zero. The point of contention is that other labeling on the product packaging, outside of the required Nutrition Facts labeling, also states that the product does not contain trans fat. The plaintiff alleges that the statement outside the required label constitutes consumer fraud regarding the amount of trans fat, which can harm human health.

In the recent Reid decision, the Ninth Circuit — which has jurisdiction over California and several other Western U.S. states — reversed an earlier district court decision that dismissed claims of false advertising. FDA regulations allow product packaging to include statements like “fat-free” outside of the Nutrition Panel labeling even when products contain small amounts of fat, and the district court held that the allowance would extend to claims about trans fat. The Ninth Circuit disagreed.

Headaches for food manufacturers

The Reid v. Johnson & Johnson case is one of many class-action suits relating to food labeling currently winding through the Ninth Circuit with help from consumer fraud attorneys. And the Ninth Circuit’s decision hasn’t clarified the rules and requirements: In 2012, the court ruled on a similar case related to Drumstick® ice cream bars. In that case, the court agreed with a previous dismissal of claims of consumer fraud relating to a labeling statement of “0 g Trans Fat” outside the Nutrition Facts label.

And in 2013, the Third Circuit handed down a ruling on the same Benecol® product. In that case, the court agreed that the label statements of “No Trans Fat” were acceptable. Many questions remain to be answered regarding Reid v. Johnson & Johnson and similar consumer fraud cases in Los Angeles.

If you need assistance from a consumer fraud lawyer in Los Angeles, contact the offices of Garcia & Artigliere, or call (800) 328-2630.


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