Kathleen Goegel is a 2019 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Bowling v. Johnson & Johnson is a bit of a repeat in the realm of the “Food Court” litigation the WLF Legal Pulse routinely covers. This is yet another case with a frequent-flier plaintiff attempting to get ahead of the Food and Drug Administration’s (FDA) trans-fat fade out. However, what makes this case unique is the reasoning behind the court’s denial of class certification.

Background

Suzannah Bowling is seeking class certification under Rule 23 for her suit against Johnson & Johnson and its subsidiary, McNeil Nutritionals, LLC. Bowling claims that the defendants’ on-label “no trans-fat” representation misled her and the putative class members into paying more money for the butter substitute Benecol than the product was worth. Benecol, she argued, in fact does contain a trace amount of trans-fat. However, Benecol contained such a low percentage of trans-fat that FDA regulations compelled it to list the amount on the food label as “zero grams trans-fat.” In addition to the economic harm, Bowling alleges that she faced intestinal distress after purchasing and consuming Benecol.