Plaintiffs Seek Class Cert. In Benecol Trans Fat Class Action Lawsuit

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The plaintiff in a class action lawsuit alleging Johnson & Johnson and McNeil Nutritionals LLC falsely advertised their Benecol products as having no trans fat has asked a New York federal judge to grant Class certification to a proposed Class of Benecol buyers.

Plaintiff Suzanna Bowling asked the judge to certify a nationwide Class and a New York subclass of consumers who purchased Benecol from Jan. 1, 2008 through Dec. 31, 2011.

During this time period, tubs of Benecol Regular Spread and Benecol Light Spread included labels stating “no trans fat” and “no trans fatty acids” even though the spreads included some trans fat, according to the Benecol class action lawsuit.

Bowling filed the Benecol class action lawsuit last year, claiming that J&J and McNeil mislabeled the Benecol spreads in violation of New York consumer protection laws. Benecol was sold as a healthier alternative to butter and margarine spreads.

“It was on the tub. It was on the lid,” Bowling says in her memorandum supporting certification of the Benecol class action lawsuit. “It was on the outer sleeve, not just once but three times — on the front, back, and top — written in all capitalized, bolded letters. In total, No Trans Fat and No Trans Fatty Acids appeared in seven different places.”

The Benecol class action lawsuit notes that the U.S. Food and Drug Administration has warned that trans fats can raise “bad” cholesterol levels and pose an adverse impact on heart health.

Further, the 9th U.S. Circuit Court of Appeals has already determined that the “no trans fat” claim on the Benecol container is not true, according to the Bowling’s memorandum supporting her motion for Class certification. This conclusion by the 9th Circuit is binding and cannot be relitigated, Bowling says.

Bowling says that every tub of Benecol sold during the proposed Class Period included 7.5 percent partially hydrogenated soybean oil. Partially hydrogenated oils are reportedly the primary source of industrially produced trans fatty acids in the diet, the court documents state.

The FDA regulations reportedly state that the presence of trans fat should be indicated on a product label unless the product contains less than 0.5 grams of total fat in a serving and no other claims are made about fat, fatty acid or cholesterol content.

The defendants filed a motion to dismiss the Benecol class action lawsuit in July 2017 but U.S. District Judge Alison J. Nathan said in March that the claims in the Benecol class action lawsuit were not preempted by federal law.

Bowling is not the only consumer to take legal action over the allegedly false advertising of Benecol. A settlement of one Benecol lawsuit was reached in July 2015, but the terms of the settlement have not been disclosed. A Benecol class action lawsuit was filed in August 2015 in California federal court, and a motion for Class certification is currently awaiting a ruling.

The Benecol class action lawsuit brings claims for unjust enrichment, negligent misrepresentation, fraud, and violation of New York laws.

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

The Benecol Trans Fat Class Action Lawsuit is Suzanna 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.

UPDATE: On April 22, 2019, a federal judge denied Class certification in a proposed Benecol class action lawsuit challenging Johnson & Johnson’s “no trans fat” label, due to “unique” legal snags.