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FDA Trans Fat Ruling Could Spur Reformulations, Lawsuits

Holdouts Likely to Give In as Processed Food Ingredient Deemed Unsafe

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In a preliminary ruling Thursday the Food and Drug Administration likely put the nail in the coffin of trans fat, while setting in motion a process for brands to eliminate most of it.

Long John Silver Among Those Targeted
Long John Silver Among Those Targeted

Packaged food marketers and fast-food companies began aggressively dumping trans fat in the wake of a 2006 labeling requirement. But the FDA's latest action could cause the holdouts – which include some microwaveable popcorn and frozen pizzas brands -- to reformulate, while potentially spurring class-action lawsuits.

The ruling makes a preliminary determination that partially hydrogenated oils, which is the primary dietary source of artificial trans fat in processed foods, are not "generally recognized as safe" for use in food. The next step is to gain input on the time needed for food makers to reformulate products, should the ruling be finalized. The ruling does not affect trans fat that "naturally occurs in small amounts of certain meat and dairy products."

"While consumption of potentially harmful artificial trans fat has declined over the last two decades in the United States, current intake remains a significant public health concern," FDA Commissioner Margaret A. Hamburg said in a statement. "Further reduction in the amount of trans fat in the American diet could prevent an additional 20,000 heart attacks and 7,000 deaths from heart disease each year – a critical step in the protection of Americans' health."

Label law led to decline
The FDA in 2006 began requiring food marketers to display trans fat content on packaging in 2006. As a result, trans fat intake among Americans has dropped to about 1 gram per day in 2012, compared with 4.6 grams in 2003, according to the FDA. Still, Michael Taylor, the agency's deputy commissioner for foods and veterinary medicine, stated in a blog post that "there are still many processed foods with trans fat, including some snack foods, microwave popcorn, frozen pizzas, cakes, cookies, stick margarine products, coffee creamers, pies and ready-to-use icing products."

Pop Secret 100 calorie 10 pack
Pop Secret 100 calorie 10 pack

In a statement praising the ruling, the Center for Science in the Public Interest cited several brands as still using trans fat, including Diamond Foods' Pop Secret Premium Butter Popcorn (5 grams of trans fat per serving); varieties of ConAgra's Marie Callender's pies (3.5 or 4 grams); and Pillsbury Grand! cinnamon rolls (2 grams).

General Mills, which owns Pillsbury, in a statement called the ruling a "major development," noting that "partially-hydrogenated oil (PHO) has always been considered safe for use by FDA, and by the food industry as well." But the company said it "had already been working quickly to reduce the use of PHOs in products as the science began to shift on trans fats, and more than 90 percent of our U.S. retail products are already labeled as zero grams trans fat."

In a statement, ConAgra said: "We look forward to learning more about the FDA proposal," but noted that "we took steps to remove partially hydrogenated oils from many foods in our portfolio years ago, including moving Orville Redenbacher's popcorn to 0 grams trans fat per serving."

Fast food under pressure since 2002
Much of the fast-food industry was forced to respond to the trans fat issue years ago, largely because of the amount of fried food they sold. In 2002, the Institute of Medicine recommended that consumers take in as little trans fat as possible. By 2008, many fast feeders, including Starbucks, McDonald's, Burger King, Wendy's and KFC had either pledged to end the use of trans-fat oils or had already cut it from the supply chain. Restaurants with locations in New York were forced to eliminate trans-fat oil anyway, due to the New York Board of Health's 2006 ruling banning trans fat from restaurants and bakeries, mandating that they eliminate it by July 2008.

But many of those companies dragged their heels before then, and in some cases, lawsuits resulted. CSPI in 2006 filed a class-action lawsuit against KFC for its use of partially hydrogenated oil, which contains trans fat. McDonald's in 2005 settled a 2003 lawsuit filed by a San Francisco-area activist who was seeking to raise public awareness on the issue. McDonald's agreed to pay $7 million to the American heart Association and spend another $1.5 million to inform the public of its trans fat plans.

There have been stragglers, though. Long John Silvers in August said that it would become trans-fat-free by the end of the year, after the CSPI publicized that the chain's Big Catch plate was "the worst restaurant meal in America," with a staggering 333 grams of trans fat. Church's Chicken in September said that it would eliminate trans fat by Dec. 24

CSPI maintains a "Trans Fat Wall of Shame" here.

Lawsuits coming?
Alexia Howard, who covers the packaged food sector for Sanford C. Bernstein, said in an email that while most companies eliminated trans fat after the 2006 labeling law, "the limit at that point was that if you had less than half a gram per serving, you didn't have to disclose it on the label." So "to eliminate that last part could be quite a challenge in terms of reformulation for some products."

The proposed rule would allow brands to petition the FDA for approval to continue using trans fat.

The regulation, if finalized, could spur lawsuits from increasingly aggressive trial lawyers. "The real issue would likely be what, if anything, did the brands know," Linda Goldstein, a partner and chair of the advertising, marketing and media division at Manatt, Phelps and Phillips, said in an email. "If there was evidence that the brands knew this was not safe there could potentially be litigation. However, unlike the tobacco cases, I believe that is unlikely."

Still, she added: "In this environment where class action lawsuits run rampant, something like this could certainly spur some hungry class action lawyers."

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