United States Ninth Circuit

In this false advertising action brought against defendants Johnson & Johnson and McNeil Nutritionals concerning assertions McNeil made about its product Benecol, a butter or margarine substitute, McNeil declared on Benecol's label that the product contained "No Trans Fat" and contains plant stanol esters that lower cholesterol, despite the fact that the product does contain trans fat. McNeil alleges, however, that it was authorized under FDA regulations to make the trans fat statement due to the insignificant amount of trans fat in Benecol, and further contends that a 2003 FDA letter authorized its plant stanol ester statements, and that it was therefore entitled preemptive effect. The district court's dismissal of the suit is affirmed in part and reversed in part, where: 1) plaintiff's state law claims were not preempted to the extent they were predicated on McNeil's trans fat statements; 2) the FDA's 2003 letter lacked preemptive effect; and 3) plaintiff's action was not barred by the primary jurisdiction doctrine, which allows courts to stay proceedings or dismiss a complaint without prejudice pending resolution of an issue within the special competence of an administrative agency.

Appellate Information

• Decided 03/13/2015
• Published 03/13/2015

Judges

• Callahan

Court

• United States Ninth Circuit

Counsel