False Advertising Suit Against J&J Revived

Johnson & Johnson and McNeil Nutritionals must face a false advertising over its claim that butter substitute Benecol contains “No Trans Fat,” a federal appeals court ruled Monday.

The lawsuit by Robert Reid in San Diego won reinstatement of his suit with the 9th U.S. Circuit Court of Appeals ruling that his state law claims were not preempted by federal law or by the Food and Drug Administration 2003 letter that approved the company’s trans fat statement.

Benecol is a vegetable oil-based spread that McNeil sells as a healthy substitute for butter or margarine.  On the Benecol lable, McNeil declares it contains no trans fat and plant products that lower cholesterol.

Benecol does contain small amounts of trans fat, the panel said, but in levels so low it is authorized by the FDA to make the “no trans fat” statement.

Reid’s lawsuit contends that Benecol is a “toxic food additive” that negatively affects blood cholesterol levels.  He argued that it is made with partially hydrogenated vegetable oil, which contains trans fat.  He says artificial trans fat does not exist in nature and the human body is not evolved to digest it.

The trial court found Reid lacked standing to challenge the claim and that his claims were preempted.  The 9th Circuit reversed.

The district court found Reid lacked standing because he failed to allege facts showing Benecol’s statements may deceive a reasonable consumer.

In overturning the decision, Judge Connie Callahan wrote, “It is far from clear that typical consumers understand that a product containing partially hydrogenated vegetable oil necessarily has trans fat, so even if an ingredient list has a curative effect in some cases, it might not here.”

She added that Reid’s claim that Benecol is improperly being marketed to consumers as a health food is at an early stage in proceedings.  “We cannot say whether he is right or wrong.  It is clear, however, that Benecol’s label prominently states that Benecol contains ‘No Trans Fat.’  That statement is not true,” she wrote.

The court sent the case back to the trial court to proceed.

Case: Reid v. Johnson & Johnson, No. 12-56726

 

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