Last month we wrote about FDA's determination that trans fat will no longer be generally recognized as safe ("GRAS") and that the agency's decision could open the door for consumers wishing to attack food products containing trans fat.1 Perhaps in a sign of things to come, the "Food Court" (Federal District Court in Northern California) recently denied a motion to dismiss a lawsuit that targets several instant noodle products manufactured by Nissin Foods ("Nissin") as violating California law because they are made with trans fat and allegedly pose a risk to public health. While the court dismissed various mislabeling claims as preempted by federal law, it allowed a cause of action under Section 17200 of California's Unfair Competition Law ("UCL"), as well as a breach of implied warranty of merchantability claim, to survive based on allegations that trans fats are not safe for consumption.
In Guttman v. Nissin Foods (U.S.A.) Co., Inc., Case No. 3:15-cv-00567 (N.D. Cal.), the named plaintiff, Victor Guttman, filed a putative nationwide class action making extensive allegations that trans fats are linked to numerous health risks, including cardiovascular heart disease, diabetes, cancer, Alzheimer's disease, and cognitive decline in diabetics.2 Citing various studies, plaintiff maintained that there is "no safe level" for trans fat intake and that Nissin failed to use safe and commercially available substitutes. In seeking both monetary and injunctive relief, Guttman challenged Nissin's products based on two theories of liability: (i) Nissin's labels are misleading because the company included a "0g Trans Fat" icon on the front of the instant noodle packaging when the instant noodles actually contain minute amounts of the substance3; and (ii) Nissin is selling an unsafe product