'0g Trans Fat' Misrepresentation Claim Reinstated

Nathan A Adams IV is a Partner in Holland & Knight's Tallahassee office.

In Hawkins v. Kroger Co., 906 F. 3d 763 (9th Cir. 2018), the court of appeals reversed the district court's dismissal of a putative consumer class action against a bread crumb manufacturer for an alleged misrepresentation on a label indicating that the crumbs contained "0g Trans Fat per serving." The consumer claimed that, but for the label, she would not have purchased the product. The court of appeals determined that the consumer adequately alleged standing under California's Unfair Competition Law, False Advertising Law and the Consumer Legal Remedies Act by alleging that she would not have bought the product but for the misrepresentation. Furthermore, the court of appeals determined that the consumer's labeling claims were not expressly pre-empted by the Nutritional Labeling and Education Act (NLEA). FDA regulations do not authorize bread crumb manufacturers to make statements on a packaging label that bread crumbs contain zero trans fats; therefore, the...