For example, in a complaint* filed against Heinz on July 18 by The Weston Firm (which has filed multiple lawsuits on trans fats in recent years), plaintiff Troy Backus repeatedly refers to the FDA’s June 16 determination to support his argument that Heinz had “deceived consumers into purchasing a product that is harmful to their health” and falsely advertised its Ore Ida frozen microwave French fries and tater tots as containing 0g trans fat when in fact they contained “dangerous levels of trans fat”.
While the FDA currently permits firms to make ‘0g trans fat’ nutrient content claims on products containing less than 0.5g trans fat per serving, its final determination that “there is a lack of consensus among qualified experts that PHOs are safe for use in food at any level” meant Heinz's 0g trans fat claim amounted to an “unauthorized nutrient content claim”, argued Backus.
Attorney: FDA did not spell out whether a product that is on the market with PHOs currently is or is not adulterated
While this was a stretch, claimed Glenn Lammi, Chief Counsel in the Legal Studies Division of the Washington Legal Foundation, the FDA had given plaintiff’s attorneys such as Greg Weston fresh ammo.
He told FoodNavigator-USA: “I don’t think the unauthorized nutrient content claim will succeed... But as you know, the goal of a complaint is to throw as much against the wall as one can, and see what sticks.”
However, claims that the products were adulterated under federal law (which state laws such as California’s Sherman Law mirror;) or that the labels are 'false or misleading' under state law would be harder to defend now, he argued.
"A plaintiffs’ lawyer with a very flexible state consumer protection law at his or her disposal can sue companies with products containing PHOs arguing that: 1) The product is adulterated under federal law, which state laws such as California’s Sherman Law track identically; and 2) The product is 'unfair' or the packaging is 'false or misleading' under state law." Glenn Lammi, Washington Legal Foundation
The key problem, he said, was that “FDA explicitly said nothing in the June 16 order with regards to whether a product that is on the market with PHOs currently is or is not adulterated.
"So a plaintiffs’ lawyer with a very flexible state consumer protection law at his or her disposal can sue Heinz or other companies with products containing PHOs arguing 1) the product is adulterated under federal law, which state laws such as California’s Sherman Law track identically; and 2) the product is 'unfair' or the packaging is 'false or misleading' under state law.
“If enough of these types of suits are filed and allowed to proceed past the motion to dismiss stage, will companies in reality have three years to reformulate their products? I would argue that they would not.”
FDA wording ‘unfortunate’
He added: “Granted, defendants will have good arguments to oppose legal theory #1, in that the granting of a three-year compliance period infers that FDA intended for those products to be on the market lawfully while they were being reformulated.
“But on theory #2, FDA spoke directly and explicitly to the question of whether the declaratory order preempts state statutes and common law (i.e. court decisions) regarding trans fat. It basically said federal law did not expressly preempt such laws and court decisions, and that it was unlikely the Order impliedly preempted such laws or rulings.”
And this was unfortunate, he argued: “FDA frankly did not need to make any such statements in the Order, and it’s unlikely it was unaware of how those statements could be interpreted by plaintiffs’ lawyers or federal judges.
“There are, after all, a whole lot of lawsuits going on out there where plaintiffs’ lawyers are doing FDA’s job, and FDA has not, to my knowledge, objected to that.”
Plaintiff: Commercially viable alternative formulations and substitutes for PHO were and are available
In the lawsuit v Heinz, filed in the Northern District of California, plaintiff Troy Backus alleges that Heinz's use of PHO is “unfair” within the meaning of the California Unfair Competition Law "because its conduct is immoral, unethical, unscrupulous, and substantially injurious to consumers...
"While Defendant’s use of PHO in Easy Fries and Easy Tater Tots may have some utility in that it allows Defendant to realize higher profit margins than if it used safe alternatives, this utility is small and far outweighed by the gravity of the serious health harm Heinz inflicts upon consumers....
"Although commercially viable alternative formulations and substitutes for PHO were and are available, Defendant elects not to use them in Easy Fries and Easy Tater Tots in order to increase its profits."
Claiming the products had 0g trans fat was also false and misleading under California law, he added: "Heinz falsely markets and falsely represents Easy Fries and Easy Tater Tots as free of trans fat; however all Easy Fries and Easy Tater Tots contain dangerous levels of trans fat."
Heinz did not respond to requests for comment.
Read more about the FDA's final determination on PHOs HERE.
*The case is: Backus et al v H J Heinz Company 3:15-cv-02738, filed in the Northern District of California on June 18.