Fast Bites Class Action Should Not Be Dismissed, Plaintiff Says

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Last week, a plaintiff urged a California federal judge not to dismiss a class action lawsuit that alleges Fast Bites sandwiches contain unhealthy trans fats.

Plaintiff Shavonda Hawkins filed a sur-reply in opposition to defendant AdvancePierre Foods Inc.’s motion to dismiss the trans fat class action lawsuit, arguing that a new federal law that temporarily prohibits partially hydrogenated oils from being deemed unsafe should not be applied retroactively to this litigation.

Hawkins is referring to the Consolidated Appropriations Act passed in December, which states that no partially hydrogenated oils “shall be deemed unsafe” and no food that contains partially hydrogenated oil “shall be deemed adulterated” according to U.S. Food and Drug Administration standards until June 18, 2018.

AdvancePierre reportedly filed a motion to dismiss the Fast Bites class action lawsuit, arguing that the Appropriations Act was implemented to prevent consumers from filing “frivolous lawsuits” related to products’ trans fat content. Further, AdvancePierre argues that it has until the 2018 deadline to adjust its use of partially hydrogenated oils in its food products.

Hawkins disagrees with AdvancePierre’s assertions and argues that the Appropriations Act is silent with regard to private litigation. Further, the Appropriations Act doesn’t challenge the FDA’s conclusion that trans fats are unsafe.

“Properly considered, the Appropriations Act therefore does nothing more than regulate what the FDA may do between the day it was passed and June 18, 2018,” Hawkins argues. “It has no bearing on the authority of California to regulate dangerous and fraudulently labeled products such as Pierre’s Fast Bites sandwiches.”

She says that the Appropriations Act is not meant to be applied retroactively. “The 2018 compliance date it set was not the date when PHO would magically go from safe to unsafe, but when the FDA itself would begin enforcing the prohibition on its use given its lack of safety,” Hawkins says.

“Nothing in the Appropriations Act declares PHO to be safe however, or seeks to reverse or stay prior determinations,” Hawkins continues. “Thus, the initial act of deeming PHO unsafe already occurred before the bill’s passage, and only the FDA’s ability to ‘deem’ a food that contains PHO as adulterated is encompassed by the statute.”

Hawkins also rejects the notion that the passage of the Appropriations Act provides a safe harbor allowing companies to use partially hydrogenated oils or that it protects companies that use PHO “from the reach of California’s law.” She asserts that the only purpose of the Appropriations Act was to limit the FDA’s treatment of trans fats until 2018.

Hawkins filed the Fast Bites sandwiches class action lawsuit in October, claiming that AdvancePierre’s use of partially hydrogenated oils in the sandwiches put the company’s profits above consumers’ health. The use of trans fat has been banned in other parts of the world because of its health risks. In June, the FDA indicated it would eventually ban partially hydrogenated oils because they are no longer recognized as safe. The agency gave food producers a total of three years to phase out the use of PHOs in their products.

Hawkins is represented by Gregory S. Weston and David Elliot of The Weston Firm.

The Fast Bites Sandwiches Class Action Lawsuit is Hawkins v. AdvancePierre Foods Inc., Case No. 3:15-cv-02309, in the U.S. District Court for the Southern District of California.