Backus’ most recent suit – filed on April 11 – argues the inclusion of partially hydrogenated oils (PHOs) in General Mills’ baking mixes violate California business laws. It also alleges it is a breach of warranty and a public nuisance.
Pre-emptive and frivolous
Attorneys for General Mills have asked California Federal Judge William H. Orrick to dismiss the lawsuit, which is “unmistakably” pre-empted because of the passage of a federal statute in late 2015.
They argue food manufacturers have been given until June 18, 2018 to stop using PHOs and, until then, Section 754 of the Consolidated Appropriations Act of 2016 prevents foods made with PHOs being labeled as “adulterated” or “unsafe”.
Having been down this road before, General Mills noted every court that has interpreted the statute found it pre-empts state law claims regarding the inclusion of PHOs in foods.
“Courts have noted these PHO-based lawsuits are precisely the kind of ‘frivolous’ litigation that Congress meant to bar when it passed Section 754,” they stated.
Backus’ lawsuit, however, states the US Food and Drug Administration believes “state or local laws that prohibit or limit use of PHOs in food are not likely to be in conflict with federal law, or to frustrate federal objections.”
Council for General Mills countered that courts have consistently rejected this argument, stating: “The statement is not a finding, only a comment, and an ambiguous one at best.”
General Mills is aware of three other cases filed in the Northern District where the plaintiff, Troy Backus, is also the named plaintiff, and where his claims attacking the use of PHOs in foods have been dismissed due to the pre-emptive effect of Section 754.”
Judge William H. Orrick is scheduled to rule on May 16.
Troy Backus v. General Mills, Inc. et al
Case Number 3:15-cv-01964