United States District Court, N.D. California
TROY BACKUS, on behalf of himself and all others similarly situated, Plaintiff,
CONAGRA FOODS, INC., Defendant.
ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS, AND (2) ORDER FOR
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
putative class action, defendant food manufacturer moves to
dismiss the complaint pursuant to FRCP 12(b)(1) and 12(b)(6).
For the reasons stated herein, defendant’s motion is
Granted in part and Denied in part, subject to an Order for
limited discovery to resolve the issue of standing.
Troy Backus brings this putative class action against
defendant’s use and labeling of artificial trans-fat in
its margarine products. For many years, Backus purchased and
consumed a variety of margarine spreads and sticks under the
brand name Fleischmann’s, which is manufactured and
sold by defendant ConAgra Foods, Inc. ConAgra’s
products contained partially-hydrogenated oil, a food
additive derived from low-cost oils. The manufacturing
process for partially-hydrogenated oils produces artificial
trans-fat with a chemical structure different from most
naturally-occurring fat. The chemical properties of
artificial trans-fat give partially-hydrogenated oil a longer
shelf life as compared to other additives derived from
low-cost oils (Amd. Compl. ¶ 4).
complaint cites numerous studies that purportedly link the
consumption of artificial trans-fat to increased risk of
certain medical conditions such as cardiovascular heart
disease, diabetes, breast, prostate and colorectal cancer,
Alzheimer’s disease, and organ damage. In particular,
the complaint alleges “[t]here is no ‘safe
level’ of artificial trans-fat intake” and
“any incremental increase in trans-fat increases risk
of [cardiovascular heart disease]” (id. at
¶¶ 4-5). The Food and Drug Administration has
issued a final determination that partially-hydrogenated oils
are no longer “generally recognized as safe.” 80
Fed. Reg. 34650 (June 17, 2015). Pursuant to that
determination, manufacturers have until 2018 to remove
partially-hydrogenated oils from their products.
all of ConAgra’s margarine products at issue contained
partially-hydrogenated oils (and listed those oils among the
ingredients of those products), the front and back product
labels described the product as containing “0g of
Trans-Fat, ” and “No Trans-Fat.” In
addition, ConAgra’s labels claim its products contain
“100% Less Cholesterol” and “70% Less
Saturated Fat” than butter and “[t]he delicious
taste of Fleischmann’s enhances your favorite foods
while maintaining your healthy lifestyle” (id.
at ¶¶ 17-18).
claims that he relied on the various health and wellness
claims appearing on ConAgra’s packaging, which he
claims implied the products were healthy. Backus claims that
he would not have purchased the margarine products absent
these claims (id. at ¶ 14). Backus further
claims that he could not have discovered earlier
ConAgra’s allegedly unlawful acts described herein
because the dangers of artificial trans-fat were unknown to
him as a lay consumer (id. at ¶ 24).
not Backus’s first foray into litigation regarding
artificial trans-fat. Backus has filed three prior lawsuits
regarding artificial trans-fat and food labeling. Backus
v. General Mills, Inc., No. 15-1964 (N.D. Cal. Aug. 18,
2015) (Judge Thelton Henderson); Backus v. H.J. Heinz
Co., No. 15-2738 (N.D. Cal. Oct. 16, 2015) (Judge
William Orrick) (voluntarily dismissed with prejudice),
Backus v. Nestle USA, Inc., No. 15-1963 (N.D. Cal.
Mar. 8, 2016) (Judge Maxine Chesney) (pending appeal).
January 2016, Backus commenced this action against ConAgra
and seeks to represent two nation-wide classes, one for
persons who purchased ConAgra’s margarine products
containing partially-hydrogenated oil and the other for
persons who purchased ConAgra’s margarine products in
packaging containing the allegedly misleading claims (Amd.
Compl. ¶ 25).
complaint alleges various claims for relief for
ConAgra’s use of trans-fat, on the basis that
using trans-fat in food products is unlawful, and for its
product mislabeling, on the basis that its labels
misrepresented the product.
the use claims, Backus alleges the following
violations: (1) the unlawful prong of California Business and
Professions Code Section 17200, (2) the unfair prong of
Section 17200, and (3) breach of the implied warranty of
the mislabeling claims, Backus alleges the following
violations: (1) the unfair prong of Section 17200, (2) the
unlawful prong of Section 17200, (3) the fraudulent prong of
Section 17200, (4) the California False Advertising Law,
California Business and Professions Code Sections 17500,
et seq., (5) the California Consumer Legal Remedies
Act, California Civil Code Sections 1750, et seq.,
and (6) breach of the express warranty.
seeks, among other things, restitution, disgorgement,
punitive damages, injunctive relief, and attorney’s
fees. ConAgra now moves to dismiss Backus’s complaint
pursuant to FRCP 12(b)(1) and 12(b)(6). Additionally, ConAgra
requests judicial notice of the complaints and orders
pertaining to Backus’s prior lawsuits as well as
Backus’s counsel’s public comment on
partially-hydrogenated oils. The records are not necessary to
this decision. As such, the request for judicial notice is
Denied as moot. This order follows full briefing and oral
this order will address whether federal law bars the use
claims. Second, it will address express federal
preemption and the sufficiency of the mislabeling claims.
Third, it will address Article III standing.
Fourth, it will provide the details for limited
Backus’s Use Claims.
alleges that ConAgra violated California and federal law by
including artificial trans-fat in its products.
The Use of Trans-Fat is Not Unlawful Under Federal
alleges that ConAgra violated the unlawful prong of Section
17200 because it violated federal law by using
partially-hydrogenated oils in its food products. Under the
unlawful prong, Section 17200 “borrows violations of
other laws and treats them as unlawful practices that the
unfair competition law makes independently actionable.”
Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140
(9th Cir. 2012).
argues that the sale of food with trans-fat is unlawful
because it violates the Federal Food, Drug, and Cosmetic Act
in various ways, specifically portions of the FDCA that
prohibit the use of “adulterated foods.” The FDCA
deems a food “adulterated” if it contains any
unsafe food additive. 21 U.S.C. 342(a)(2)(c). Moreover under
Section 348(a), the FDA must grant pre-market approval to all
food additives. However, the FDCA explicitly exempts from the
definition of “food additive” foods Generally
Recognized as Safe (GRAS), which is a status of safety
“adequately shown through scientific procedures.”
21 C.F.R. 170.30.
products contain trans-fat, which is a partially-hydrogenated
oil. The FDA recently determined that partially-hydrogenated
oils are no longer GRAS, stating that “there is no
longer a consensus among qualified experts that
partially-hydrogenated oils are ...