The coming of spring has been accompanied by good news for two food marketers—ConAgra and Bumble Bee Foods—in their respective court fights in California.
In the Northern District of California, a federal judge dismissed a putative class action against ConAgra alleging that the marketer’s Crunch N’ Munch product violated California’s unfair competition law since it contains partially hydrogenated oil (PHO), a food additive high in trans-fat. The complaint, filed by Tony Walker, specifically stated, “although safe, low-cost, and commercially acceptable alternatives to PHO exist, including those used in competing brands and even in other ConAgra products, ConAgra unfairly elects not to use safe alternatives in Crunch ‘n Munch in order to increase its profits at the expense of the health of consumers.”
ConAgra argued that the plaintiff’s claims were preempted under federal law. The defendant pointed to the Consolidated Appropriations Act (CAA), federal legislation signed into law in December 2015, which mandates that no product containing PHOs be deemed unsafe or adulterated prior to June 18, 2018. The FDA, in June 2015, promulgated a final determination that PHOs are no longer considered Generally Recognized as Safe (GRAS). In its determination, the Agency gave food manufactures until June 18, 2018 to remove PHO from their products.
The judge, Judge Jeffrey S. White, found ConAgra’s preemption argument compelling. In granting ConAgra’s motion to dismiss, the judge said that defendants had “carried [the] burden” of demonstrating that the PHO claims were barred by conflict preemption. Further, he cited two recent PHO decisions from the Northern District reaching a similar disposition regarding preemption.
Bumble Bee Foods also received a favorable outcome in its bench trial in the Santa Clara Superior Court. Plaintiffs in this case had alleged that Bumble Bee Foods misled consumers by labeling its tuna products as an excellent source of omega 3-fatty acids and including an American Heart Association logo on the label without disclosing that the defendant had paid for the logo. This bench trial followed a denial of plaintiff’s motion for class certification in July 2016.
First, the judge, Judge Peter Kirwan, found that defendant’s use of the “excellent source” claim was not unlawful. Although the FDA had promulgated a proposed rule preventing claims such as “excellent source of omega 3-fatty acid” on food products, Bumble Bee Foods’s actions were not prohibited. Further, once the rule was finalized in April 2014, Bumble Bee ceased making the claims.
Second, Judge Kirwan, during the trial, suggested that defendant’s use of the American Heart Association logo would not necessarily be interpreted by consumers as an endorsement of the product. Although Bumble Bee Foods did not disclose that it paid to use the logo on its product, the judge believed that there was evidence that the American Heart Association does have criteria for use of their logo beyond simply paying a fee.
These dispositions are certainly positive for ConAgra, Bumble Bee Foods, and defendants facing similar claims in subsequent litigation. But only time can tell whether this season, and this year, will continue delivering good news for food marketers in the courtroom.
The ConAgra case, Walker v. ConAgra Foods Inc. (4:15-cv-02424), was dismissed on March 31, 2017. The Bumble Bee Foods case, Garret et al. v. Bumble Bee Foods LLC (2014-1-cv-264322), was decided on March 30, 2017.
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This article was co-authored by first-year associate Jordan Bailey who is not yet admitted to practice law in Washington, DC.