Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Challenge to Coffee-Mate ‘0g Trans Fat’ labeling preempted, (Mar 9, 2016)

By Edward L. Puzzo, J.D.

California state law claims challenging a "0g Trans Fat" labeling statement on Coffee-Mate products were preempted by federal food labeling regulations, the federal district court in San Francisco has ruled (Backus v. Nestle USA, Inc., March 8, 2016, Chesney, M.).

Plaintiff Troy Backus brought a putative class action against NestleUSA, Inc., in connection with its Coffee-Mate non-dairy coffee creamer product. Nestle’s use of the statement "0g Trans Fat" in its labeling and marketing for Coffee-Mate was "false and misleading" in violation of California’s Unfair Competition Law (UCL) and False Advertising Law (FAL), Backus claimed, because Coffee-Mate contains partially hydrogenated oil, which allegedly is an artificial form of trans fat.

Preemption. Nestlé contended that the plaintiff's labeling allegations were state law claims that were expressly preempted by the federal food labeling requirements contained in the Nutrition Labeling and Education Act (NLEA) amendments to the Food, Drug and Cosmetic Act (FDCA).

Sections 343(q) and (r) of NLEA set forth specific labeling requirements governing, respectively, claims made within the "nutrition box" of the product packaging and claims made elsewhere on the product packaging.

Backus' allegations concerned the "0g Trans Fat" claim made "on the front of each bottle" of Coffee-Mate; that is, on the outside of the nutrition box. Under the FDA regulations implementing NLEA, "expressed nutrient content claims" outside the nutrition box are not precluded, as long as they are not false or misleading in any respect.

For claims inside the nutrition box, the regulations require a statement of the number of grams of trans fat in a serving, unless (a) the product contains less than 0.5 grams of total fat per serving, and (b) no claims about fat, fatty acid, or cholesterol content are made outside the nutrition box.

It was undisputed by the parties that the Coffee-Mate product contained less than 0.5 grams of trans fat. Under the regulations, such a trans fat level, when declared, must be expressed as zero. This raised the issue of whether the same claim made outside the nutrition box was authorized.

The court cited other decisions in the district, with labeling claims essentially indistinguishable from the labeling claims here, ruling that the labeling claims were preempted by NLEA. These courts found significant the FDA's expressed preference for internal consistency between the nutrition box and the rest of the label.

The court concluded that the nutrient claim challenged by Backus was explicitly authorized by the food labeling regulations, and thus was not false or misleading under federal law. Any claim that the labeling was false or misleading under state law would be imposing requirements not identical to the federal food labeling requirements and consequently must be preempted. Therefore, the court dismissed plaintiff's claims on the basis of preemption.

The case is Civil Action No. 3:15-cv-01963-MMC.

Attorneys: David Elliot (The Weston Firm PC) for Troy Backus. Dale Joseph Giali (Mayer Brown LLP) for Nestle USA, Inc.

Companies: Nestle USA, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews