Northern California Record

Wednesday, November 13, 2019

General Mills cleared of lawsuit over its use of partially hydrated oils

Lawsuits

By Charmaine Little | Dec 19, 2018

Cereal
ICS Media Database

SAN FRANCISCO — Thanks to conflict preemption, General Mills was able to escape a class-action lawsuit in the U.S. District Court for the Northern District of California.

The court dismissed the case, concerning the use of partially hydrated oil (PHOs) in the company’s baking products, on Dec. 10.

In its motion to dismiss, General Mills argued that PHOs were not deemed to be unsafe until June 2018—roughly three years after plaintiffs filed their lawsuit.

U.S. District Judge William H. Orrick, who ruled on the case, said conflict preemption blocked the class’s unlawful and unfair claims against General Mills via the California Unfair Competition Law.

Lead plaintiff Troy Backus had argued that General Mills did not satisfy the premise against federal preemption, but the court disagreed.

“Setting the compliance date for June 18, 2018 represents a ‘clear and manifest purpose of Congress’ that the use of PHOs in food would only become illegal upon this date,” the court said.

It dismissed the case with prejudice.

Backus sued General Mills in 2015 and called out its use of selling baking mixes that included PHOs; this came two years after the FDA hesitantly ruled that PHOs were not generally recognized as safe, categorizing it as GRAS.

GRAS refers to a food that is allowed to be sold without market approval.

The FDA ultimately determined there was no longer an agreement that PHOs were GRAS for human food and urged “submission of scientific evidence as part of food additive petitions,” to decide if PHOs were able to be used in small portions. PHOs would not be formally classified as unsafe until June 18, 2018.

Meanwhile, Backus had sued General Mills for public nuisance, breach of implied warranty of merchantability, and claims via the unlawful and unfair categories of the UCL in California.

A previous judge who heard the case dismissed the first two counts with prejudice but granted General Mills’ motion to stay the case for the remaining two counts, which the current court has dismissed.

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General MillsU.S. District Court for the Northern District of California

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