Kroger Trans Fat Labeling Class Action Lawsuit Revived by 9th Circuit

UPDATE:

• A Class has been certified in this case, which is pending preliminary approval.
• A settlement website has been established as a resource for Class Members.
• Top Class Actions will let viewers know when a claim form becomes available.

A class action lawsuit alleging that Kroger bread crumbs are wrongfully marketed as containing “zero grams of trans fat,” has been revived after the Ninth Circuit reversed a lower court’s decision.

A three judge panel in the Ninth Circuit overturned the decision of a lower court after determining it had wrongly interpreted the claims made in the Kroger class action lawsuit.

“Because we disagree with all of the district court’s holdings, we reverse and remand for further proceedings,” the panel wrote.

Plaintiff Shavonda Hawkins filed her Kroger class action lawsuit in 2015 alleging that the store-brand bread crumbs were wrongfully labeled as containing zero grams of trans fat. Hawkins claimed that the bread crumbs actually contained 0.5 grams of trans fat.

The proposed Kroger bread crumbs class action alleges violations of several laws including the California Unfair Competition Law, California False Advertising Law and California Consumer Legal Remedies Act.

In 2016, U.S. District Judge Jeffery T. Miller dismissed the proposed class action on the grounds that Hawkins had not actually read the labeling during the 15 year period in which she purchased the bread crumbs.

Judge Miller also cited U.S. Food and Drug Administration (FDA) guidelines which allow food labels to “round down” to zero if the food products contain less than one full gram of trans fats.

However, the three judge panel denied this logic finding that Judge Miller had “misread Hawkins’ complaint.” According to the panel, Hawkins purchased Kroger bread crumbs beginning in 2000 and first discovered the trans fat content in August 2015.

The panel says that Judge Hawkins misunderstood this statement to mean that Hawkins only read the label for the first time in 2015.

“This paragraph does not allege that she first read the label in August 2015; it alleges she first discovered the label was misleading on that date,” the three judge panel wrote. “The district court did not address the three paragraphs where Hawkins concretely alleged that she relied on the label.”

Although the FDA does have regulations allowing the rounding down to zero in the nutrition label of products, the panel argued that the regulations do not set guidelines for making trans fat related claims or statements on the rest of the product packaging.

The three judge panel further supports Hawkins by criticizing the FDA labeling regulations in general.

“A regulatory scheme intended to convey accurate and clear information to consumers is instead mind-bogglingly complex and confusing,” wrote the panel, quoting Diana R.H. Winters’ scholarly article “The Magical Thinking of Food Labeling: The [Nutrition Labeling and Education Act] As A Failed Statute.”

Hawkins seeks to represent a Class of consumers who purchased Kroger bread crumbs containing trans fats after 2008.

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

The Kroger Trans Fat Class Action Lawsuit is Hawkins v. The Kroger Co., Case No. 16-­55532, in the U.S. Court of Appeals for the Ninth Circuit.