Two major food manufacturers face class action lawsuits for using artificial trans fats in processed foods. (subscription to Law360 required)

• Artificial trans fats are substances created by the addition of hydrogen to liquid vegetable oils to make them more solid.  The primary source of dietary trans fats in processed food is “partially hydrogenated oils” or “PHOs.”  In November 2013, FDA announced its tentative determination that PHOs are not Generally Recognized as Safe (GRAS) for use in human food.  The basis for FDA’s determination is the link between trans fat and health risks, such as coronary heart disease (CHD), as identified by scientific evidence and expert scientific panels, such as the Institute of Medicine (IOM) and the Center for Disease Control and Prevention (CDC).  
• General Mills and Nestle USA now face class action lawsuits in California federal court due to their use of artificial trans fats in their baking mixes and coffee creamers, respectively.  The complaints — which were filed by the same firm and share the same lead plaintiff — allege that the companies deliberately chose not to use healthier, commercially available alternatives to artificial trans fats in spite of the growing consensus that trans fat consumption is unsafe.  The Nestle complaint further alleges that the company engaged in deceptive advertising by making a “0 g Trans Fat” claim on product packaging, even though this label claim is permitted under FDA regulations where a serving contains less than 0.5 g of trans fat.  In 2013, a California federal judge dismissed a similar lawsuit against Nestle and California Pizza Kitchen over their alleged use of artificial trans fat in frozen pizza products.  The dismissal was based on the plaintiff’s failure to establish an increased risk of harm associated with product consumption.
• These lawsuits highlight the food industry’s continuing challenge regarding the use and presence of trans fat in processed foods.  Although PHO alternatives are commercially available, it is not always simple (or palatable to consumers) to simply eliminate PHOs from long-tested recipes.  FDA is expected to finalize its determination about the GRAS status of artificial trans fat later this year.  Assuming that the Agency finalizes its tentative determination, we will have to see whether a “phase-out” period is provided.  We expect that stakeholders will respond by filing a food additive permission to permit the marketing of artificial trans fat in certain food categories and/or at certain levels.  Unfortunately, we suspect that the General Mills and Nestle lawsuits will not be the last we see on this issue in the weeks and months ahead.