General Mills seeks dismissal of man's latest trans fat lawsuit

By Amanda Thomas | Apr 22, 2018

General Mills argues a federal trans fat class-action lawsuit the company faces is “unmistakably” pre-empted because of the passage of a federal statute in late 2015.

SAN FRANCISCO – General Mills argues a federal trans fat class-action lawsuit the company faces is “unmistakably” pre-empted because of the passage of a federal statute in late 2015. 

The plaintiff, according to court documents, has been down this road before.

The lawsuit filed April 11 by Troy Backus alleges that General Mills’ baking mixes are unsafe because they use partially hydrogenated oils (PHOs) containing trans fat. Backus argues that the inclusion of PHOs violate California business laws. It also alleges it is a breach of warranty and a public nuisance. 

General Mills argued that a section of the Consolidated Appropriations Act of 2016 prevents foods made with PHOs from being labeled “adulterated” and “unsafe” through June 18 – the day companies will be required to stop using the ingredient. The federal statute was passed in December 2015. General Mills noted that every court that has interpreted the statute found it pre-empts state law claims regarding the inclusion of PHOs in foods.

“Courts have noted that these PHO-based lawsuits are precisely the kind of ‘frivolous’ litigation that Congress meant to bar when it passed Section 754,” attorneys for General Mills argued. 

Backus’ lawsuit stated the U.S. Food and Drug Administration believes “state or local laws that prohibit or limit use of PHOs in food are not likely to be in conflict with federal law, or to frustrate federal objections.” 

General Mills, however, noted that courts have consistently rejected this argument, referencing a previous case in which the court said, “The statement is not a finding, only a comment, and an ambiguous one at best.”

The company also referenced similar cases where Backus is listed as the plaintiff. 

“General Mills is aware of three other cases filed in the Northern District where the plaintiff, Troy Backus, is also the named plaintiff, and where his claims attacking the use of PHOs in foods have been dismissed due to the preemptive effect of Section 754,” 

A hearing before Judge William H. Orrick is scheduled for May 16. 

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