December 22, 2016 Practice Points

PHOs/Trans Fats: Litigation Should Await June 18, 2018 Compliance Date

By Jessalyn H. Zeigler

The plaintiffs' attorneys have filed numerous purported class actions alleging a variety of claims for food products containing partially hydrogenated oils (PHOs)/trans fats. These suits initially met with some success, but the majority have not progressed following the Food and Drug Administration's (FDA) June 15, 2015 Final Determination (FDA Final Determination) on the use of PHOs in food, in which the FDA found that there is no consensus that PHOs are Generally Recognized As Safe (GRAS). See 80 Federal Register 34650 et seq. The FDA established a June 18, 2018 compliance date by which time food additive petitions for use of PHOs by industry or other interested parties should be made, reviewed, and any approvals received. Id. Furthermore, Congress's enactment in December 2015 in the Consolidated Appropriations Act 2016 (CAA) of a prohibition against finding that PHOs are unsafe, or that a product containing PHOs is adulterated, until the June 18, 2018 compliance date, has led to the dismissal of many of these suits as preempted. Pub. L. No. 114-113, 129 Stat. 2242, 2284 (2015).

Most recently, in Hawkins v. Advancepierre Foods, Inc., 2016 WL 6611099 (S.D. CA November 8, 2016), Judge John A. Houston dismissed a purported class action, finding that such claims are preempted by the FDA's determination that it is not deeming PHOs as not GRAS, but rather is seeking comments on such through June 18, 2018. The FDA's pronouncement, plus Congress's action in the CAA led Judge Houston to conclude that lawsuits suing food manufacturers for use of PHOs are preempted until there is further federal action. The plaintiffs' counsel has appealed the ruling.

Not all courts have dismissed all claims involving PHOs, however. In Walker v. B&G Foods, Inc., 2016 WL 463253 (N.D. Cal. 2016) the court dismissed certain claims as pre-empted, but stayed the false advertising claims pending the FDA's determination on any PHO petition that may be submitted. In Backus v. Conagra Foods, Inc., 2016 WL 3844331 (N.D. CA July 15, 2016) the court dismissed all the claims as pre-empted, with the exception of a "healthy lifestyle" claim.

Food manufacturers and scientists should petition the FDA regarding the science behind the levels of PHOs in any food products for which they have a basis to do so. Since the best outcome to date for any plaintiff filing a suit involving PHOs since the FDA's and Congress's recent actions has been to allow a limited claim to proceed or to stay the litigation, any future litigation should await the June 18, 2018 compliance date or any further FDA and/or Congressional action.

Jessalyn H. Zeigler is a member of Bass, Berry & Sims PLC in Nashville, Tennessee.

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