Tuesday, March 2, 2021
The Ninth Circuit recently affirmed the dismissal of a putative class action alleging Diamond Foods engaged in unfair practices, created a nuisance, and breached the warranty of merchantability by including partially hydrogenated oils as an ingredient in Pop Secret popcorn.
Plaintiff Jacquelyn McGee alleged Pop Secret contains partially hydrogenated oil, “a food additive banned in many parts of the world because it is the only dietary source of artificial trans fat,” which (according to McGee) “causes cardiovascular heart disease, diabetes, cancer and Alzheimer’s disease.” Plaintiff claimed she was injured by this in three ways: the amount of trans fat she consumed in Pop Secret (1) “caused her economic injury because she believed she was purchasing a safe product when she was not”; (2) “caused her physical injury by harming her heart and blood vessels”; and (3) substantially increased her “risk of heart disease, diabetes, cancer, and death.” Based on these allegations, Plaintiff’s Complaint asserted several claims including violations of California’s Unfair Competition Law, nuisance, and breach of the implied warranty of merchantability, and sought, among other things, restitution, disgorgement, and injunctive relief.