Judge Denies Cert. In Benecol Margarine ‘No Trans Fat’ Lawsuit

A federal judge recent denied Class certification in a proposed Benecol class action lawsuit challenging Johnson & Johnson’s “no trans fat” label, due to “unique” legal snags.

Plaintiff Suzanna Bowling had wanted to represent a Class of New York residents who purchased Benecol buttery spread between 2008 and 2011.

However, U.S. District Judge Alison J. Nathan determined that Bowling was not a sufficient Class representative.

The declaration comes as a result of manufacturer Johnson & Johnson’s arguments against Class certification.

The company casted doubt on Bowling’s Benecol purchasing story and noted that she is bound by a “covenant not to sue” from a settlement which resolved Bowling’s previous class action about Listerine.

“These defenses are ‘meritorious enough to require the plaintiff to devote considerable time’ to rebut them,” Judge Nathan said in her order. “For these reasons, the court concludes that the [relevant] prerequisites are not met, and therefore that Bowling’s motion for class certification must be denied.”

With Judge Nathan’s recent order, she has dismissed all of Bowling’s class action claims. This means that Bowling can move forward with individual claims against Johnson & Johnson but not as a class action lawsuit.

Bowling filed her class action lawsuit in May 2017, claiming that Johnson and Johnson mislead their Benecol purchasers by claiming that the buttery spread had “no trans fat” and “no trans fatty acids.”

The plaintiff argued that Benecol does in fact contain trans fat in the form of partially hydrogenated soybean oil.

According to her trans fat class action, Bowling purchased Benecol in 2011 from her local Walmart. She also claimed that she had immediately contacted Johnson & Johnson about the trans fat in their Benecol in order to request a refund.

Bowling moved for Class certification in August 2018, seeking to represent both a national and New York Class. Johnson and Johnson picked apart Bowling’s credibility in response which caused doubt as to Bowling’s suitability as a Class representative.

Johnson & Johnson argued that Benecol was not sold at Walmart during the time that Bowling claimed to have purchased the product from her local retailer. Additionally, the company’s record showed that Bowling had not contacted the company as she had claimed.

Although Bowling attempted to dismiss these issues as “peripheral,” Judge Nathan said that Johnson & Johnson’s arguments jeopardized her “credibility on key issues.”

“Here, defendants have presented unrebutted evidence that Bowling could not have purchased Benecol Light in the manner in which she has testified; she is therefore ‘vulnerable to serious attacks’ on her credibility,” Judge Nathan wrote in her order.

Johnson & Johnson has faced several class action lawsuit regarding trans fat in Benecol over the past few years and several claims are still pending against the company.

Bowling is represented by Scott A. Bursor, Joseph I. Marchese, Neal J. Deckant and Frederick J. Klorczyk III of Bursor & Fisher PA.

The Benecol Buttery Spread Class Action Lawsuit is Bowling v. Johnson & Johnson, et al., Case No. 1:17-­cv­-03982, in the U.S. District Court for the Southern District of New York.

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