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Hawkins v. Kroger Co.

United States Court of Appeals for the Ninth Circuit

December 7, 2017, Argued and Submitted, Pasadena, California; October 4, 2018, Filed

No. 16-55532


 [*766]  BLOCK, District Judge:

Trans fat has become increasingly recognized as a dangerous substance and a leading cause of numerous serious ailments, including heart disease and diabetes. Food and Drug Administration ("FDA") regulations govern the information reported within a food product's Nutrition Facts Panel on the product's label.3  [*767]  As for trans fat, FDA regulations provided, at all relevant times, that if the product contained "less than [**4]  0.5 gram" trans fat, as it did in this case, it was required to tell the consumer on the Nutrition Facts Panel that it contained 0 grams trans fat, even though it contained this dangerous food additive.

We are asked to determine, inter alia, whether these FDA trans fat regulations governing the contents of the Nutrition Facts Panel preempt California's unfair competition laws proscribing false or misleading advertising elsewhere on a food product's label. We hold that they do not; accordingly, the plaintiff can challenge the legitimacy of defendant's product advertising on the face of the label that it contains "0g Trans Fat per serving." In doing so, we take the occasion to reinforce and apply our holding in Reid v. Johnson & Johnson that "a requirement to state certain facts in the nutrition label is not a license to make that statement elsewhere on the product." 780 F.3d 952, 960 (9th Cir. 2015) (emphasis added).

Hawkins' complaint alleges the following:4 The Kroger Company ("Kroger") sells Kroger Bread Crumbs ("KBCs") in stores in California, including the supermarket chain Ralph's. Hawkins regularly purchased KBCs at several Ralph's locations between 2000 and 2015. In making the purchases, she relied [**5]  on the information contained on the face of the label that the product contained "0g Trans Fat per serving." In August 2015, she discovered that, contrary to the claim on the label, KBCs "contained artificial trans fat, and caused heart disease, diabetes, cancer, and death."5

In October 2015, Hawkins brought a putative class action against Kroger seeking to represent a class of consumers who were misled by the label ("the labeling claims") and had used the dangerous product ("the use claims"). The complaint alleged violations of the California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq., False Advertising Law ("FAL"), Cal. Bus. & Prof. Code § 17500 et seq., Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750 et seq., and common law claims for breach of implied warranty of merchantability and breach of express warranty. It sought damages, pre-judgment and post-judgment  [*768]  interest, injunctive6 and declaratory relief, attorneys' fees, and costs.

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906 F.3d 763 *; 2018 U.S. App. LEXIS 28116 **; 2018 WL 4782382

SHAVONDA HAWKINS, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. THE KROGER COMPANY, Defendant-Appellee.

Prior History:  [**1] Appeal from the United States District Court for the Southern District of California. D.C. No. 3:15-cv-02320-JM-BLM. Jeffrey T. Miller, Senior District Judge, Presiding.

Hawkins v. The Kroger Co., 2016 U.S. Dist. LEXIS 53632 (S.D. Cal., Mar. 17, 2016)



label, fat, Nutrition, regulations, nutrient, food, preempted, serving, district court, Preemption, misrepresentation, consumer, misleading, zero, saturated fat, authorize, purchases, grams

Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Justiciability, Standing, Injury in Fact, Appeals, Standards of Review, De Novo Review, Antitrust & Trade Law, Trade Practices & Unfair Competition, State Regulation, Claims, Consumer Protection, False Advertising, State Regulation, Constitutional Law, Supremacy Clause, Federal Preemption, Deceptive Labeling & Packaging, Federal Food, Drug & Cosmetic Act, Business & Corporate Compliance, Governments, Agriculture & Food, Reviewability of Lower Court Decisions, Preservation for Review