Lawsuit proceeds on the premise that the use of PHOs in foods may violate California law. (subscription to Law360 required)

  • As previously covered on this blog, FDA recently issued a final determination stating that there is no longer a consensus among qualified experts that partially hydrogenated oils (PHOs) are generally recognized as safe (GRAS) under any conditions of use in food.  Although FDA provided a “compliance date” of June 18, 2018 — ostensibly giving the food industry three years to remove PHOs from food or to seek regulatory clearance for low-level uses — the status of PHO use under state law during the interim time period is not clear.
  • In a recent ruling on a motion to dismiss before the “Food Court” (Northern District of California), the judge permitted a plaintiff’s case to proceed on the premise that the presence of PHOs in defendant’s noodle products may violate California law.  Specifically, the judge found “plausible allegations” under:
    • the Unfair Prong of California’s Unfair Competition Law (based on allegations that the use of trans fats in foods poses risks to public health and that the only utility of such use is that it is less expensive than safe substitutes) because the law applies a balancing test of harm and utility; and
    • the breach of implied warranty of merchantability (based on allegations that foods containing trans fats are not fit for human consumption due to the associated health risks).
  • In the ruling, the judge cited FDA’s recent statement that “no form of partially-hydrogenated oil was ‘generally recognized as safe'” and noted the lack of any federal “safe harbor protecting the use of [PHOs] from the reach of California law.”  Although the case still poses key questions of whether the presence of PHOs actually violated California law, as well as issues of class certification, standing, and damages — and other courts might take a different position on such issues — this early ruling illustrates the reasons for anxiety in the food industry during the immediate aftermath of FDA’s PHO determination.