Trans Fat Labeling: Another Court Finds in Favor of PreemptionNovember 8, 2010
By Ricardo Carvajal –
A California district court dismissed a class action lawsuit alleging that baked-goods products manufactured by Hostess Brands, Inc. are marketed in violation of California law because they are promoted as containing “0 grams of Trans Fat” despite containing partially hydrogenated oils. The court noted that FDA labeling regulations “explicitly define the term ‘0 Grams of Trans Fat’” to include amounts of less than 0.5 grams, and that the FDC Act and its implementing regulations explicitly preempt “any requirement for nutrition labeling of food that is not identical to the requirement of section 403(q)” of the FDC Act. Thus, a food containing less than 0.5 grams of trans fat per serving may properly declare the amount of trans fat as zero.
Some aspects of the court’s analysis are open to question (e.g., the court characterizes a statement about the amount of a nutrient in a food as an “express nutrient content claim” even where that statement does not implicitly characterize the level of the nutrient and is not false or misleading). Nonetheless, this is one of several courts to find preemption under similar circumstances, which suggests that “0 Grams Trans Fat” claims that comply with applicable regulatory requirements are likely to withstand a challenge grounded in state law claims of unfair competition and false advertising.