Ninth Circuit: No Relief from Stay in General Mills’ Trans Fats Case Pending FDA Action

The Ninth Circuit will not review district court stays, the appeals court recently held, because they are not “final orders” subject to immediate appeal. On January 26, 2015, the Ninth Circuit granted General Mills’ motion to dismiss plaintiff Troy Backus’ appeal of a district court order staying his putative class action against General Mills for its use of partially hydrogenated oils (PHOs) (also known as “trans fats”) in its baking mixes. Backus v. General Mills, Inc., Case No. 15-16658

District Court Stay. Judge Henderson stayed the case based on the Food and Drug Administration’s (FDA’s) primary jurisdiction over the safety of trans fats. The court held that whether General Mills’ use of trans fats in food poses a significant safety risk “is both an important question of first impression, and a complicated issue that has been committed to the FDA.” No. 15-cv-01964-THE, 2015 WL 4932687, at *17 (N.D. Cal. Aug. 18, 2015).

Plaintiff’s Appeal. The plaintiff appealed, arguing that the stay was effectively final because it was unclear when FDA would complete its review. In a one page order without discussion, the Ninth Circuit disagreed. The stay was not a “final or collateral order” subject to immediate appeal, the panel held, so the court lacked jurisdiction.

Takeaway. Backus demonstrates that the Ninth Circuit will not provide immediate relief for plaintiffs facing stays pending FDA’s review of food or cosmetic regulations. Rather, plaintiffs must argue to district courts that stays should be lifted based on the slow pace of FDA’s review. As we describe in a related post on “evaporated cane juice” (ECJ) stays, while this argument has gained traction with a few courts in this district — including Judge Henderson in a subsequent case, Figy v. Lifeway Foods, Inc., No. 3:13-cv-4828-TEH (N.D. Cal. Jan. 4, 2016), Dkt. No. 57—most courts have rejected it. Food and cosmetic misbranding cases stayed pursuant to the primary jurisdiction doctrine will likely have to wait for FDA’s review to run its course.