On Tuesday the FDA gave the food industry three years to remove trans fats from their products. This ban affects partially hydrogenated oils, which are still used in food items like french fries and pie crusts.
The goal of the FDA is to reduce the risks of cardiovascular disease by banning the artery clogging trans fats from use in products. However, there may also be another outcome of the ban, one that could put a lot of food companies in the court room. Attorneys are eager to use the ruling in class-action suits against food companies that have used trans fats.
For their part, the lawyers of the food industry are also preparing to defend against possible suits. They have already started digesting the FDA ban to see if it will protect them from litigation.
“The FDA, in November 2013, dropped something of a regulatory bomb on trans fat by issuing a tentative decision that partially hydrogenated oils are not GRAS (generally recognized as safe) — a move that blindsided many in the industry. FDA’s final ruling gives the food industry until June 2018 to stop using partially hydrogenated oils and shift to only very limited uses that are proven to be safe.”
Since then most companies have already moved away from trans fats in their products. Foods like Doritos and Oreos are now free from partially hydrogenated oils. Other companies, like General Mills, Nestlé and ConAgra, are now on the three-year clock the FDA started.
Despite these measures the food industry still expects a multitude of lawsuits to come their way. In fact, Michael Reese, an attorney and partner at Reese Richman LLP, sees a big opportunity for lawsuits.
FDA’s ruling on trans fat is likely to change the legal landscape and “really open up the floodgates on strict liability claims,” he said.
According to a report by Politico, the Grocery Manufacturers Association crafted a petition to ask the FDA to allow “very limited” use of trans fats. However, the details behind the petition are still a mystery, and it could take up to two years to approve the changes.
While the FDA works on the petition, the food industry will continue to prepare for the coming lawsuits.