No Worse for Butter: Ninth Circuit Says Popcorn’s “Secret” Ingredient Does Not Confer Article III StandingThe Ninth Circuit recently determined that the mere presence of artificial trans fats in popcorn (i.e., the “butter” in butter flavored popcorn) does not create an injury that confers Article III standing.

In McGee v. S-L Snacks National, a consumer brought a putative class action alleging economic and physical injuries caused by the inclusion of artificial trans fats as an ingredient in Pop Secret. The plaintiff alleged that she purchased Pop Secret at least once every two to three months over the past decade, assuming it contained only “heart-healthy” ingredients. According to the plaintiff, Pop Secret’s manufacturer engaged in unfair practices, created a nuisance, and breached the warranty of merchantability by including artificial trans fats in its product.

The defendant moved to dismiss for lack of Article III standing, asserting that it’s not an injury to eat ingredients that are clearly disclosed on the nutrition label. The plaintiff countered that she had plausibly alleged injury from her consumption of Pop Secret in three ways. First, she claimed an economic injury equal to the amount she paid for Pop Secret because she believed she was purchasing a product that was safe for consumption, when, according to the plaintiff, Pop Secret was not fit for consumption and had no value. Second, the plaintiff alleged that consuming nearly half a pound of trans fats from Pop Secret caused her immediate physical injuries. Third, the plaintiff alleged that her consumption of Pop Secret increased her risk of future injury. The district court disagreed and granted the defendant’s motion to dismiss.

The Ninth Circuit affirmed and held that none of the plaintiff’s theories plausibly alleged an injury in fact sufficient to confer Article III standing.

Economic Injury. The plaintiff advanced two theories on appeal to support her alleged economic injuries: (1) a “benefit of the bargain” theory; and (2) an overpayment theory. As to the benefit of the bargain theory, the plaintiff claimed she purchased Pop Secret because she thought it was a safe, lawful product. But she urged that the presence of artificial trans fats deprived her of the benefit of her bargain. The Ninth Circuit found this argument unpersuasive, as it rested on the plaintiff’s blind wishes, not the disclosed facts. Although the plaintiff may have assumed that her popcorn contained only heart-healthy ingredients, the labeling on the product disclosed the inclusion of artificial trans fats. In other words, to the extent the plaintiff lost a “benefit,” the court found it was not part of the bargain to begin with.

The plaintiff’s overpayment theory fared no better. The key to success on an overpayment theory of economic injury is the defendant’s false representations or deceptive conduct. The court concluded that the plaintiff failed to allege that she paid more for the Pop Secret than it was worth due to the defendant’s deceptive conduct, as the presence of artificial trans fats was disclosed on the nutrition label.

Present and Future Physical Injury. The plaintiff’s alleged present physical injuries were too speculative to support standing, even at the initial pleading stage. The plaintiff alleged that consuming nearly half a pound of trans fats from Pop Secret over the past decade caused her physical injury. However, the court was skeptical of the plaintiff’s claimed injuries: she did not allege that she visited a doctor or sought any form of medical treatment for her ailments. Rather, her argument rested on the assumption that any consumption of artificial trans fats over the course of a decade invariably results in some form of physical injury. This “consumption assumption” was too speculative to confer standing.

Finally, the Ninth Circuit held that the plaintiff failed to allege an actionable future physical injury. As with the plaintiff’s present physical injury argument, the court was not persuaded that the plaintiff’s limited consumption of Pop Secret placed her at substantial risk of future physical injuries.

McGee is not a landmark class action case, but it joins the Subway footlong case, the Tito’s Vodka “old fashioned still” cases and any number of other food marketing class actions that serve as reminders that class actions about foods are common and frequently meritless.  In the meantime, consumers should read nutrition labels and enjoy buttery popcorn at their peril.