An Unsealed Package: The Ninth Circuit Creates a Circuit Split When Interpreting FDA Regulations on Food Label Nutrient Content Claims in Reid v. Johnson & Johnson

Abstract

On March 13, 2015, in Reid v. Johnson & Johnson, the U.S. Court of Appeals for the Ninth Circuit held that the statement “No Trans Fat” on the label of Benecol, a food that contains between 0 and 0.5 grams of trans fat, was not a permitted nutrient content claim. The court held that such a statement made on the label was false or misleading and was therefore not authorized by Food and Drug Administration (“FDA”) regulations. The court came to this conclusion despite the Third Circuit reaching the opposite conclusion in 2013, in Young v. Johnson & Johnson, regarding the same statement on the same product. Although FDA regulations do not expressly discuss the permissibility of a “No Trans Fat” nutrient content claim, the FDA issued two warning letters stating that this nutrient content claim is unauthorized. This Comment argues that the conflict between the Third and Ninth Circuits demonstrates the need for the FDA to revisit regulations pertaining to trans fat nutrient content claims.