California federal judge finds plausible state law cause of action, but stays trans fat lawsuit pending FDA’s consideration of PHO petition. (subscription to Law360 required)

  • As previously covered on this blog, class action lawsuits have been filed in the wake of FDA’s determination (tentative in 2013, final as of June 2015) 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.  The Grocery Manufacturers Association (GMA) has submitted a food additive petition to FDA seeking the Agency’s approval of specific low-level uses of PHOs.
  • In a case filed against General Mills, a federal judge in California has decided to stay the litigation pending FDA’s determination regarding the lawful use of PHOs.  The judge first found that the plaintiff plausibly alleged a state law violation (by plausibly alleging that PHOs are injurious to health and that food containing PHOs may be adulterated under California’s Sherman Act, supporting an “unlawful” claim under the state’s unfair competition law).  However, the judge went on to explain:  “Whether small amounts of trans fats can lawfully be used as a food additive is a complicated question requiring agency expertise, and one that the FDA will be reviewing before June of 2018.”  The “primary jurisdiction doctrine” is a prudential doctrine under which courts may determine that the initial decision-making responsibility should be performed by the relevant agency, rather than the courts.  Finding FDA’s determination to be “central” to the plaintiff’s claims in the case, the judge cited the primary jurisdiction doctrine as the rationale for staying further litigation.
  • It remains to be seen whether other judges will accept and apply the reasoning in this case, particularly as this will result in plaintiffs’ lawsuits being stayed for multiple years pending FDA’s review of the food additive petition.  If other courts apply the primary jurisdiction doctrine, this could signal a slowdown in trans fat cases filed between now and 2018.  Nevertheless, the “legal status” of PHOs in the food supply in the interim time period remains a subject of much debate.