SAN FRANCISCO – A federal judge agreed to dismiss a class action complaint accusing ConAgra of improperly labeling Crunch ’n Munch.
Judge Susan Illston of the U.S. District Court for the Northern District of California issued an opinion March 18 dismissing the complaint in which Mark Beasley accused ConAgra Brands of using partially hydrogenated oils (PHOs) in the popcorn snack from Jan. 1, 2010, through May 31, 2018, despite the label saying it contained zero grams of trans fat per serving.
Beasley filed his complaint Nov. 6, 2018, and amended his complaint Jan. 11. The class would include all California residents who bought Crunch ’n Munch in the time frame in question.
Illston said the U.S. Food and Drug Administration issued a notice June 17, 2015, saying it determined there was no longer a consensus partially hydrogenated oils are safe in human food and required they be discontinued by June 18, 2018. Beasley said he “lost money when he purchased products that hurt his health and were unfairly sold (in) violation of federal and California law,” the ruling states.
Although the 9th Circuit Court of Appeals hasn’t spoken directly on if federal law now pre-empts PHO usage claims, Illston said, “numerous judges in this district have examined the issue and have found claims based on the use of PHOs in food prior to June 18, 2018, are conflict preempted by the FDA’s Final Determination and resulting legislation.”
In agreeing with the findings of other judges, Illston said Beasley’s lawyers are the same ones who unsuccessfully raised many of the same arguments in other cases. She ultimately determined Beasley didn’t have standings for his use claims, saying the FDA determination can’t be used as a basis for retroactive action against food with the ingredients in question. She dismissed those claims with prejudice.
ConAgra also moved to dismiss four claims brought on behalf as a subclass, saying two duplicated legal remedies, Beasley lacked standing for three and also that he failed to specifically allege the circumstances of his purchase.
Although Beasley said he wouldn't have bought Crunch ’n Munch absent the claim it contained zero trans fat, ConAgra said in Beasley’s original complaint and other suits, he said he didn’t learn trans fat is harmful until October 2018, or at the earliest January 2017. Illston disagreed, saying Beasley actually said he didn’t learn until October 2018 that Crunch ’n Munch contained trans fat, a distinction that preserves some of his legal standing.
However, Illston agreed with ConAgra that Beasley’s complaint lacked specificity about when he bought the product and said some or all of his purchases might fall outside the statute of limitations.
Beasley “pled the time of his discovery, but he has failed to plead the manner of the discovery or the inability to have made earlier discovery despite reasonable diligence,” Illston wrote, dismissing three claims with leave for Beasley to amend them with more specifics.
If Beasley files a second amended complaint, Illston wrote, and if he continues to pursue claims under the Consumer Legal Remedies Act, he must file an affidavit of venue, which the California Civil Code requires. Further, she stipulated the second amendment complaint must be filed by April 1.