On March 13, 2015, the U.S. Court of Appeals for the Ninth Circuit issued a consumer-friendly decision in Reid v. Johnson & Johnson, a false advertising case concerning assertions made by a Johnson & Johnson subsidiary about its product Benecol. The product at issue is marketed as a healthy substitute for butter and margarine. The product label declares that Benecol contains “No Trans Fat” even though the product is manufactured with partially hydrogenated vegetable oil, which contains artificial trans fat. The defendant claimed that they were in compliance with FDA regulations, which allow for foods with less than 0.5 grams of trans fat per serving to be labeled as 0 grams of trans fat—an “insignificant amount” according to the FDA. In remanding the case, the Ninth Circuit logically explained that “because Benecol contains some trans fat…its “No Trans Fat” claim is misleading…” This case could serve as a significant win for consumers by toughening requirements for health claims on food nutrition labels.
The Ninth Circuit began their opinion by explaining how trans fats interact with cholesterol in the body. They explained that “Low density lipoprotein (LDL) [“bad cholesterol”], carries cholesterol to arteries and tissues. High density lipoprotein (HDL), [“good cholesterol”], takes cholesterol away from tissues to the liver, where it is removed from the body. High levels of LDL and low levels of HDL are associated with an increased risk of heart disease.” The Court explained that the “consumption of artificial trans fats increased bad LDL cholesterol and decreases good HDL cholesterol.”
The packaging for Benecol includes the following statements: “Proven to Reduce Cholesterol,” “No Trans Fat,” and “No Trans Fatty Acids.” However, the interior packaging, which a consumer would not see unless he or she opened the package—presumably after purchasing it—states that:
How can BENECOL® Spreads have 0 grams trans fat if they contain partially hydrogenated oils? A small amount of partially hydrogenated oils are used in BENECOL® Spreads to maintain a semi-solid structure and to enhance the melting characteristics of the BENECOL® Regular Spread. As a result, BENECOL® Spreads contain an extremely low level of trans fat. The FDA allows foods containing less than 0.5 grams of trans fat/serving to be labeled 0 grams trans fat, since this is considered an insignificant amount.
The district court found that the defendant’s “alleged misrepresentations would not likely deceive a reasonably consumer” in light of its disclosures on the ingredient list (i.e., the presence of partially hydrogenated vegetable oil). However, the Ninth Circuit disagreed, noting that:
“We 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 for liability for the deception.” [citing Williams v. Gerber Prods. Co., 552 F.3d 934, 939]. Regardless, it is far from clear that typical consumers understand that a product containing partially hydrogenated vegetable oil necessarily has trans fat, so even if an ingredient list has a curative effect in some cases, it might not here. [Plaintiff’s] allegations of misrepresentations are plausible enough to survive a motion to dismiss.”
The Ninth Circuit noted that “A nutrient content claim fails if it is ‘false or misleading in any respect.’” 21 C.F.R. § 101.13(i)(3) (emphasis added). Because Benecol contains some trans fat (between 0 and 0.5 grams per serving), its “’No Trans Fat’ claim is misleading in at least one respect. The structure of FDA labeling regulations bolsters this conclusion…”
The Ninth Circuit explained that “the district court found that ‘No Trans Fat’ was not misleading, as any reasonable consumer would infer that Benecol contains trans fat, given that partially hydrogenated vegetable oil is disclosed as an ingredient. As noted, however, there is no reason to believe that consumers understand that partially hydrogenated vegetable oil contains trans fat. Consequently, we conclude that [plaintiff’s] claims for relief are not preempted to the extent they are predicated on [defendant’s] trans fat statements.”
In remanding the case, the Ninth Circuit noted that plaintiff’s “basic contention in this case is that Benecol is improperly being marketed and sold to consumers as health food. At this early stage of the proceedings, we cannot say whether he is right or wrong. It is clear, however, that Benecol’s label prominently states that Benecol contains ‘No Trans Fat.’ That statement is not true. Although Benecol may contain a relatively small amount of trans fat per serving, the FDA found that the existing scientific evidence was not sufficient for it to approve ‘No Trans Fat” claims…”
Many consumers are willing to pay a premium for healthier food options. Manufacturers are more than happy to charge consumers a premium for foods that are marketed as healthier food options. This case is a significant win for the common sense proposition that manufacturers cannot get away with making misleading statements on their food labels about the contents of their products.
Photo Credit: Benecol.net
Reid v. Johnson & Johnson, 2015 U.S. App. LEXIS 4025 (9th Cir. Mar. 13, 2015).
 Id. at *4.
 Id. at *21–22.
 Id. at *4–5.
 Id. at *6–7.
 Reid, 2015 U.S. App. LEXIS 4025, at *11–12.
 Id. at *21–22.
 Id. at *23–24.
 Id. at *34–35.