Nathan A Adams IV is a Partner in Holland & Knight's Tallahassee office.
In Hawkins v. Kroger Co., 906 F. 3d 763 (9th Cir. 2018), the court of appeals reversed the district court's dismissal of a putative consumer class action against a bread crumb manufacturer for an alleged misrepresentation on a label indicating that the crumbs contained "0g Trans Fat per serving." The consumer claimed that, but for the label, she would not have purchased the product. The court of appeals determined that the consumer adequately alleged standing under California's Unfair Competition Law, False Advertising Law and the Consumer Legal Remedies Act by alleging that she would not have bought the product but for the misrepresentation. Furthermore, the court of appeals determined that the consumer's labeling claims were not expressly pre-empted by the Nutritional Labeling and Education Act (NLEA). FDA regulations do not authorize bread crumb manufacturers to make statements on a packaging label that bread crumbs contain zero trans fats; therefore, the consumer's labeling claims were not expressly pre-empted by NLEA. The requirement for a manufacturer to state that the product had "0g trans fat per serving" within the nutrition facts panel due to the so-called "rounding rule," which instructs manufacturers to round down to zero, did not give the manufacturer license to make the claim elsewhere on the package. The court of appeals remanded the question whether the consumer's so-called "use" claims were pre-empted. These are claims that it is illegal under California law to include trans fat in products because it is not fit for human consumption and is an unlawful food additive.
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