The claims in the lawsuit – one of a flurry of class actions filed by The Weston Firm against food companies making 0g trans-fat claims on products containing tiny amounts of partially hydrogenated oils (PHOs) – are pre-empted by federal food labeling laws, argued ConAgra Foods.
The FDA explicitly permits ‘0g trans-fat per serving’ claims on products containing less than 0.5g trans-fat per serving, something judges handling similar lawsuits have acknowledged, it said.
And while the FDA has recently unveiled plans to revoke the GRAS (generally recognized as safe) status of partially hydrogenated oils, it has given the industry three years to phase them out, said ConAgra, noting the FDA had “affirm[ed] PHO’s lawful status as a food ingredient for at least the next three years”.
Food manufacturers will also have the opportunity to petition the FDA to permit specific uses of PHOs over that period, said ConAgra.
In other words, this is a matter for the FDA, not the courts, said the firm.
“ConAgra Foods moves in the alternative that the Court dismiss or stay this action under the doctrine of primary jurisdiction, so that the FDA may exercise its jurisdiction, in the first instance, to resolve issues falling within its unique expertise.”
*The case is Troy Walker et al vs ConAgra Foods 4:15-cv-02424, filed in the Northern District of California.