Illegal and dangerous.

That’s how plaintiffs in a would-be class action described the coffee creamer Coffee-mate, made by Nestlé USA Inc.

On Tuesday, lawyers from Mayer Brown led by partners Carmine Zarlenga and Dale Giali got the suit dismissed with prejudice.

The Weston firm sued Nestle in San Francisco federal court in April 2015, alleging that Coffee-mate contains unhealthy partially hydrogenated oil, even though it claims to have “0g trans fat.”

“The trans fat creamers were worth less than what plaintiff paid for them. Indeed, Coffee-mate is not fit for human consumption and has a value of $0,” wrote Gregory Weston on behalf of California resident Troy Backus, asserting violations of California’s Unfair Competition Law.

Weston has carved out a specialty suing companies over trans fat, winning a settlement with Quaker Oats Co. in 2014 to remove artificial trans fat from Quaker Chewy Bars, Oatmeal to Go Bars and Instant Oatmeal. The 2004 Harvard Law grad (who started his career at the plaintiffs  firm now known as Robbins Geller Rudman & Dowd) has also gone after Cup Noodles and margarine makers. 

But he struck out with Coffee-mate when U.S. District Judge Maxine Chesney tossed all nine causes of action.

The reason? Preemption.

In June 2015, the U.S. Food and Drug Administration issued a rule that requires food makers to quit using partially hydrogenated oil as of June 18, 2018. The three-year compliance period is designed to minimize market disruption and let companies use up their existing product inventories.

“Nestlé argues that Backus’s suit, which ‘seeks to make it immediately unlawful to market or sell’ in California any food product containing [partially hydrogenated oil], conflicts with the FDA’s regulatory scheme,” Chesney wrote. “The court…agrees.”

As for the “0g trans fat” labelling claims, the Mayer Brown lawyers successfully argued that’s expressly preempted by the Nutrition Labeling and Education Act.

The law instructs food makers in the nutrition facts box to say a product has no trans fat if it has less than 0.5 grams.  And no one disputes that Coffee-mate products at issue contain less than 0.5 gram of trans fat.

The question was whether the red-and-white ”0g Trans Fat” logo on Coffee-mate’s main label, outside the nutrition facts box, was improper.

“To date, the Ninth Circuit, albeit in an unpublished decision, as well as three district courts in this district, have found labeling claims that are essentially indistinguishable from the labeling claims here at issue were preempted,” Chesney found. The judges all found it was important to maintain consistency between what’s in the nutrition facts box (which is spelled out by the law) and what’s on the rest of the label to avoid consumer confusion.

The nutrition content claim “is neither false nor misleading under federal law,” Chesney found.

In addition to Mayer Brown partners Zarlenga and Giali, associates Andrea Weiss and Elizabeth Crepps worked on the case.

Reprinted with permission from the March 10, 2016 edition of The Litigation Daily © 2016 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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