FDA regulations, which govern what food manufacturers must place in the nutrition facts panel of their product labels, state that the manufacturer should state 0 grams trans fat if the product contains less than 0.5 grams of trans fat per serving. Following Reid v. Johnson & Johnson (9th Cir. 2015) 780 F.3d 952, this decision holds that while the FDA regulations preempt state law as to facts stated within the nutrition facts panel, the FDA regulations do not govern or preempt state law as to the rest of the product label, so that plaintiff stated viable claims under California’s UCL and FAL by alleging that Kroger’s label on its breadcrumbs stated “0g Trans Fat per serving” on the front of the label when in fact it contained some trans fat. Furthermore, plaintiff had the standing to sue under the UCL and FAL since she alleged that she would not have purchased the breadcrumbs had she not believed the label and relied on its lack of trans fats, which have been linked to several serious diseases.
Ninth Circuit Court of Appeals (Block, J., sitting by designation); October 4, 2018; 2018 U.S. App. LEXIS 28116