Kroger grocery chain in Indianapolis (Photo: Shutterstock.com)

A federal appellate court has revived a consumer class action against the grocery chain The Kroger Co., which included a label on the front of store-branded breadcrumb containers touting “0g Trans Fat per serving” even though the product actually contained trans fats.

The U.S. Court of Appeals for the Ninth Circuit found Thursday that federal food labeling laws, which at the relevant time required nutrition labels to note 0g of Trans Fat in instances where there’s less than 0.5g per serving, didn’t greenlight Kroger to tout the numbers elsewhere on the packaging. In doing so, the court re-upped its earlier holding in a case involving Johnson & Johnson that “a requirement to state certain facts in the nutrition label is not a license to make that statement elsewhere on the product.”

The ruling reverses a 2016 decision from U.S. District Judge Jeffrey Miller of the Southern District of California who found that plaintiff Shavonda Hawkins didn’t have standing to sue and that her claims were preempted by federal food labeling laws.

U.S. Senior District Judge Frederic Block of the Eastern District of New York, sitting by designation on the three-judge Ninth Circuit panel, found that Hawkins’ lawyers had alleged that she had become aware that the product contained trans fats in 2015 prior to filing suit. The judge below, Block noted, had incorrectly concluded that Hawkins had just noticed the label prior to filing.

Kroger bread crumbs packaging listing 0g trans fat. (Photo: Courtesy Photo)

“The district court did not address the three paragraphs where Hawkins concretely alleged that she relied on the label,” Block wrote.

In June 2015, the U.S. Food and Drug Administration released a Final Determination regarding partially hydrogenated oils, the primary dietary source of industrially-produced trans fatty acids. The FDA found that there was “no longer a consensus among qualified experts” that they were safe for use in human food.

The Ninth Circuit held just months prior to that announcement in Reid v. Johnson and Johnson that a consumer reading a label touting the numbers as they were required to be presented in the nutritional facts panel could be misled to believe that a product was free of trans fat.

In Thursday’s decision, Block noted that the Reid case involved an instance where the label said “No Trans Fat” rather than zero grams, but he concluded that difference was of no consequence.

“Spelling out the number does not change its meaning,” wrote Block,  who was joined in his opinion by Ninth Circuit Judges Marsha Berzon and Jacqueline Nguyen. “To hold otherwise would create an illogical rule where the claim ‘zero trans fat’ is misleading but ’0 trans fat’ is not.”

The decision remands the case to the district court for further proceedings on the plaintiff’s state law false advertising and unfair competition claims, among others.

The plaintiff was represented on appeal by Gregory Weston of The Weston Firm in San Diego. In an emailed statement, Weston said that he was “pleased and grateful that the Ninth Circuit panel took the time to carefully disentangle several complicated and overlapping food label regulations and issue a published decision to provide guidance on the issue to the district courts.”

“The use of trans fat in food was a great crime that caused the early death of many thousands of Americans,” Weston said. “The Ninth Circuit’s very detailed and workmanlike decision is a warning to the few companies that still unlawfully use trans fat to immediately cease the practice.”

Kroger is represented by counsel at Davis Wright Tremaine. Los Angeles partner Jacob Harper, who argued the case for Kroger at the Ninth Circuit, didn’t immediately respond to an email message Thursday.

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