A recent decision from the Central District of California demonstrates the challenges serial plaintiffs may have with pursuing similar class actions and showcases the primary jurisdiction doctrine. On December 29, 2015, in Red v. General Mills, Inc., et al., Case No. 2:15-cv-02232-ODW(JPR), U.S. District Judge Otis D. Wright granted defendants’ motion to dismiss due to plaintiff’s lack of standing and stayed the case under the primary jurisdiction doctrine. Red challenged General Mills’ use of partially hydrogenated oils (PHOs) in their food products, asserting Unfair Competition Law (UCL), public nuisance, and breach of the implied warranty of merchantability claims. The plaintiff alleged that PHOs increase the risk of a variety of diseases and that the scientific community has concluded that there is no safe consumption level for artificial transfats.
Standing: The court held that, while the plaintiff had Article III standing based on the alleged “immediate physical injury” of consuming PHOs, she lacked standing to assert injuries based on alleged long-term health risks. The plaintiff’s future injury allegations failed because she did not demonstrate that her past level of consumption substantially increased her risk of future health complications.
The court, however, dismissed the plaintiff’s UCL claim for lack of standing because the plaintiff failed to plead adequate “economic injury.” Notably, the plaintiff had previously brought three other trans-fat lawsuits where she alleged she knew that PHOs were unhealthy, knew that food products sold in California contained PHOs, and knew that she could review the label to determine whether a product contained PHOs (but did not allege whether she looked at the label or not). The court also soundly rejected her allegation that, even if PHOs were listed as an ingredient on the label, it was unreasonable to expect her to read the label prior to purchase. The court found that the plaintiff’s “self-inflicted harm” was precisely the type that the Ninth Circuit had rejected for purposes of standing. However, the court granted the plaintiff leave to amend.
Primary Jurisdiction: Despite permitting the plaintiff to amend her UCL claim, the court ultimately concluded that the case should be stayed under the primary jurisdiction doctrine. The complexity of determining the health effects of PHOs warranted an initial determination by the FDA, because whether, and in what amount, a particular chemical substance posed a serious public health risk was precisely the type of complex question that required a uniform answer from the dedicated agency, rather than piecemeal and potentially conflicting decisions from courts. The court noted that Congress had bestowed on the FDA the authority to comprehensively regulate food safety, and, while the FDA had recently determined that PHOs were no longer generally recognized as safe, it had withheld judgment on whether certain uses of PHOs could be approved and noted it would likely decide the issue within three years.