by By Lisa Heinzerling*
As I have argued elsewhere, the transparency achieved by federal laws relating to food is only partial, and sometimes only serves to conceal a lie. If one wanted to see this principle in operation, one might turn to a recent federal district court decision from California.
In Backus v. Nestlé, the court granted a motion to dismiss a state-law consumer protection complaint objecting to the use and labeling of artificial trans fats in Nestlé’s “Coffee-mate” products. The plaintiff alleged that artificial trans fats were too dangerous to be used in food and that the labels on the front of packages of Coffee-mate products were false and misleading because they emphasized that these products had “0g Trans Fat” even though the products actually contained some trans fat. The court held that in permitting the continued, even if temporary, use of artificial trans fats in food and condoning the claim that food has zero grams of trans fat when in fact it contains some, federal regulations supplanted state-law claims challenging these practices.
Wait, you might be thinking, hasn’t the Food and Drug Administration (FDA) banned artificial trans fats in food? Doesn’t the FDA condemn food companies that misrepresent the contents of their products? The answers offer a confusing mix of yes and no.
One source of confusion is the FDA’s recent action on partially-hydrogenated oils (PHOs), the primary industrially-produced trans fatty acids. In 2015, the FDA made a final determination that “there is no longer a consensus among qualified experts that [PHOs] … are generally recognized as safe (GRAS) for any use in human food.” When a substance deliberately added to food is not “GRAS,” it is a “food additive” within the meaning of federal law, and as such it is presumed to be unsafe absent an affirmative showing of safety. When the FDA determined that PHOs were not GRAS, in other words, the FDA shifted the burden of proving safety to food producers and effectively banned PHOs from the food supply if the proof of their safety was not forthcoming.
After making this determination, the FDA gave food producers three years either to prove the safety of their products or to remove PHOs from their products. In dismissing the state-law complaint about Coffee-mate products, the federal district court held that the FDA’s three-year grace period for food sponsors preempted nearer-term application of state-law constraints against using these dangerous substances in food.
Consumers who read news accounts of the FDA’s “ban” on PHOs may be forgiven for being confused. They might reasonably believe that PHOs are prohibited right now (not true). They might reasonably have predicted that the FDA’s strong affirmation of the large-scale risks of PHOs would support rather than undermine state-law consumer action against use of these substances in food (wrong again, per Backus).
Another source of confusion is an earlier FDA action on trans fats. In 2003, responding to substantial evidence that consumption of trans fats increased the risk of heart disease, the FDA issued a rule on disclosing the presence of trans fats in food. The FDA required food companies to declare the presence and amount of trans fat in food products – if the products contained more than 0.5 grams of trans fat.
If a food product contained less than 0.5 grams of trans fat, companies could choose not to include information about trans fat in the nutrition facts panel. (The nutrition facts panel is the familiar rectangular, blue-and-white listing of calories, sugar content, vitamins, etc., on food packages.) If companies chose this course, FDA’s rule required them to include a footnote on the food package, stating that the food was “not a significant source of trans fat.” If, on the other hand, companies making food products containing less than 0.5 grams of trans fat chose to include trans fat on their products’ nutrition facts panel, the FDA instructed them to report “0 grams” as the amount of trans fat in their products. This instruction was based on the FDA’s judgment that it could not reliably detect trans fat levels in food below the cutoff level of 0.5 grams.
In other words, the FDA instructed the companies to report “some” trans fats as “zero.”
In Backus v. Nestlé, the district court condoned stretching the truth even more. The court found that the FDA’s embrace of a report of “0g” of trans fat on the nutrition facts panels of products containing up to 0.5 grams of trans fat supplanted state-law restrictions on front-of-package claims that products actually containing trans fat had zero grams of trans fat. The Backus court concluded that the FDA had a preference for keeping all of the information on the food package consistent. Thus, on the court’s reasoning, the lie allowed on the nutrition facts panel—showing “0g” trans fat even when the food contained some trans fat—had to be enlarged to include front-of-package material as well. As they say, once one starts to deceive, one must be prepared to keep going.
On its way to this puzzling result, the district court in Backus needed to distinguish a case in which the Ninth Circuit had found that state-law claims alleging that food products labeled with “No trans fat” were not preempted by federal law. The district court in Backus calmly explained that “No” means “not any,” but that “0g Trans Fat” means some.
In this topsy-turvy world, “zero” means “some,” but “no” means “none.” Get it?
* Lisa Heinzerling is the Justice William J. Brennan, Jr., Professor of Law at Georgetown University Law Center.
Image by BrokenSphere – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=10952493