In November 2013, the U.S. Food and Drug Administration announced that it was considering removing the “generally recognized as safe” status for partially hydrogenated oils (PHOs) in food products. Since then, many manufacturers have reformulated their products and replaced PHOs, also known as trans fats. Others continue to use PHOs until a final FDA decision, which is expected in June 2015.
While we wait for the FDA’s decision, the plaintiffs’ bar is busy taking advantage of the recent scientific and regulatory views on trans fats. Last week, two new class action lawsuits were filed in California federal court, arising out of food manufacturers’ use of partially hydrogenated oils in their products. The plaintiffs in the cases have sued General Mills based on its baking mixes that contain PHOs, and Nestle for selling Coffee-Mate creamer with PHOs. Read the General Mills complaint here and the Nestle complaint here.
The number of these PHO-related lawsuits is increasing even before a determination by the FDA. If the FDA opts to ban the use of PHOs, the number of lawsuits will multiply. While the recent suits were filed in California, where the laws tend to favor such filings, plaintiff attorneys in other jurisdictions will no doubt file similar claims.
Even though many of these types of suits border on being frivolous and are often ultimately dismissed or settled for nominal amounts, manufacturers are forced to defend themselves to reach that point. More than ever, food industry businesses should pay particular attention to standard contracts and terms of sale and purchase. Indemnification and other powerful contract clauses can shift liability for these suits up or down the supply chain. Manufacturers and distributors should: (1) watch for liability shifting provisions in contracts or terms proposed by others, and (2) review and update their own contracts and terms.
If you have questions about the FDA’s upcoming PHO decision, updating your contracts or terms and conditions, or other food regulatory questions, please contact Chris Predko (616.752.2190 or cpredko@wnj.com).
