Ginger Snaps Cookie Maker Wants Trans Fat Class Action Tossed

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A California federal judge was urged to dismiss a class action lawsuit alleging Nabisco Ginger Snaps are falsely labeled as containing no trans fat in violation of California state law and FDA rules.

Lead plaintiff Valorie Winn alleged in her class action lawsuit that Nabisco’s parent company, Mondelez, does not disclose that Nabisco Ginger Snaps contain dangerous levels of partially hydrogenated oils and trans fat, while falsely advertising the cookies as being made with traditional natural ingredients.

Mondelez shot back, arguing that trans fats are permitted to be in foods through 2018 under federal law and contends that the plaintiff cannot establish that she has been harmed.

“Beyond asserting a conclusory statement that consuming [partially hydrogenated oils] in ‘any quantity’ causes harm (a statement at odds with the FDA’s position), plaintiff does not allege that she actually suffered any negative health effects,” says Mondelez in its motion to dismiss.

The company also took digs at the plaintiff’s attorney, saying counsel has been notorious for filing trans fat class action lawsuits over the past five years and noting he had submitted a comment to the FDA urging the agency to ban use of trans fats.

“Only two months ago, this court dismissed the same trans fat claims brought by the same plaintiff’s counsel, ruling that his complaint was preempted by federal law,” says Mondelez in its motion for dismissal.

According to the class action lawsuit, Nabisco Ginger Snaps packaging states “Made with Real Ginger & Molasses!” and “Sensible Solution,” which tricks consumers into thinking the cookies are a healthy snack. Mondelez points out in its motion that “Sensible Solution” has not been included on the packaging since 2012 and claims based on that statement are barred by the statute of limitations.

Mondelez also contends that the cookies are, in fact, made from ginger and molasses. “Plaintiff makes the contorted argument that this true statement somehow becomes false because the cookies in the past had trace amounts of trans fat,” argues the company.

Further, says Mondelez, “the phrase ‘Sensible Solutions’ is a classic example of non-actionable puffery because there is no objective standard to determine whether these cookies are ‘sensible solutions’ or not.”

The company also takes issue with the class action lawsuit’s claim that Congress has said that use of hydrogenated oils is considered unsafe until 2018. The FDA has not banned the use of trans fats, says Mondelez, but will consider their use on a case-by-case basis after 2018.

“Partially Hydrogenated Oils (PHOs) have a ‘long history of use as food ingredients’ and, until recently, have been considered ‘generally recognized as safe’ for any use by the FDA,” says Mondelez in its motion, noting that this changed in 2015 when the FDA found that there was no longer consensus among experts about the safety of PHOs.

“Notably, the FDA did not determine that PHOs are ‘unsafe,’” points out Mondelez. “Rather, [the FDA] ‘encourage[d] submission of scientific evidence as part of food additive petitions . . . for one or more specific uses of PHOs for which industry or other interested individuals believe that safe conditions of use may be prescribed.’”

Winn is represented by Gregory S. Weston and Andrew C. Hamilton of The Weston Firm.

The Ginger Snaps Trans Fat Class Action Lawsuit is Valorie Winn v. Mondelez International Inc., Case No. 4:17-cv-02524-DMR, in the U.S. District Court for the Northern District of California.

UPDATE: On June 28, 2018, a Nabisco class action lawsuit alleging the company’s Ginger Snaps contain trans fats will remain in federal court, instead of going back to state court.