Trans Fat by Any Other Name: Court Reinstates False Advertising Lawsuit in Food Safety Win

Trans Fat by Any Other Name: Court Reinstates False Advertising Lawsuit in Food Safety Win

photo credit: Mykl Roventine via Flickr

By Leslie A. Brueckner
Senior Attorney

If you care about food safety and consumer rights, then I have good news for you. On Friday, March 13, the U.S. Court of Appeals for the Ninth Circuit issued a satisfyingly pro-consumer decision reinstating a false advertising lawsuit involving a “butter substitute” that, contrary to its label, contains trans fat.

The Court made clear that manufacturers can’t get away with lying on their labels about the contents of their product.

The case, Reid v. Johnson & Johnson, is a consumer class-action against a couple of major food companies (including industry giant Johnson & Johnson) involving a vegetable oil-based spread—Benecol—that its manufacturers advertise as an “effective and easy” healthy substitute for butter or margarine.

Among other things, the product label prominently declares that it contains “No Trans Fat,” even though—guess what?—it is manufactured with partially hydrogenated vegetable oil, which does contain trans fat.

You might’ve thought this would be an open and shut case of liability, but the district court held that because Benecol’s ingredient list discloses that the product contains “partially hydrogenated vegetable oil”—which, as it turns out, contains trans fat—it doesn’t matter that the label itself says that the product doesn’t contain any trans fat. 

Does this sound weird to you? It did to me. Happily, the Ninth Circuit didn’t buy it either. In a part of the decision that I found particularly refreshing, the Court of Appeals stated:“[w]e do not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield from liability for the deception.”  

The Court added that “there is no reason to believe that consumers understand that partially hydrogenated vegetable oil contains trans fat.” 

In other words, the Court held that a manufacturer has to tell the truth about its product on its label—it can’t get away with saying something blatantly false on its label simply by tucking some version of the truth in the fine print of its ingredient list. 

This holding is great news in and of itself. But it’s especially good when it comes to something as potentially dangerous as trans fats. 

What are they, again? Trans fats are formed when manufacturers turn liquid oils into solid fats by adding hydrogen atoms to the oils. (Hence the term “hydrogenation.”) Food producers love hydrogenation because it increases the shelf life and “flavor stability” of foods.   

Interestingly, trans fats were developed as part of the backlash against artery-clogging animal fats, like butter and cream. Food manufacturers realized that trans fats last much longer than butter without going rancid, and started putting transfats into lots and lots of processed food (such as cereals, candies, salad dressings, and baked goods). 

But as it turned out, trans fats are just as bad—and arguably much worse—than saturated or animal fats when it comes to human health. Among other things, they clog your arteries by increasing “bad” cholesterol levels, resulting in increased risks of heart attack and possibly even diabetes.

That’s what makes the Ninth Circuit’s ruling in this case so important. Under this ruling, food producers can’t lie about whether their products contain trans fat. And knowledge is power, especially when it comes to consumer choice.   

Along these lines, Public Justice is also prosecuting a lawsuit filed by consumers who were misled into buying herbs labelled “100% Organic” that actually contained a mixture of organic and conventional herbs.

Those are just the highlights of the ruling in Reid. The Court also rejected the defendants’ arguments that the plaintiff lacked standing to sue; that his claims are preempted by federal law; and that the lawsuit is barred by the doctrine of primary jurisdiction. In other words, it ruled that there’s no way to avoid liability for technical reasons unrelated to the merits of the case.

In short, there are lots of reasons to be glad about this decision. It may have been issued on Friday the 13th, but it was a lucky day for consumers in the Ninth Circuit—and for everyone else who cares about food safety and nutrition.  

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