A federal judge has popped two class actions accusing Conagra of failing to properly identify synthetic chemicals in its microwave popcorn packaging, ruling federal regulations only require companies to list ingredients in their food, not in the packaging, even if they might "migrate" to the food.
In an opinion filed Feb. 8, U.S. District Judge Robert Gettleman granted the company’s motion to dismiss the complaints, one concerning microwave popcorn with the Orville Redenbacher name and another regarding items sold with Angie’s BoomChickaPop branding. Both lawsuits said product labels failed to adequately disclose the presence of PFAS, the common abbreviation for a type of synthetic chemicals that make plastics flexible and resistant to grease and water, in the microwave popcorn packaging.
In addition to dismissing the complaints, Gettleman also granted Conagra’s motion to take judicial notice of a U.S. Food & Drug Administration document titled “Authorized Uses of PFAS in Food Contact Applications.” He said such notice is common practice, regularly involving official government websites, when the published information isn’t subject to reasonable dispute.
Although PFAS have been central to other consumer lawsuits, due to purported endocrine disruption linked to excessive consumption, the plaintiffs in these actions alleged “microwave popcorn creates a ‘unique risk’ of exposure to per- and polyfluoroalkyl substances because PFAS are used in food contact materials like microwave popping bags,” Gettleman wrote.
He said the FDA document states certain types of PFAS are authorized “for use in specific food contact applications,” a list that includes microwave popcorn bags, and that the agency rigorously studies products with PFAS, including the potential for migration into food items.
The complaints relied on “independent third-party testing of the microwave popping bags,” Gettleman wrote, and alleged Conagra deliberately markets both product lines with messages intended to convey a complete lack of artificial or unnatural ingredients.
All the consumers involved alleged they wouldn’t have bought any of the popcorn products if PFAS contents were adequately disclosed, and that they didn’t obtain the products’ full value based on alleged misrepresentations.
Conagra argued they lacked standing for failing to adequately allege a legal injury.
“Plaintiffs purchased popcorn and they received popcorn; they have offered only conclusory allegations to suggest that the products had diminished value,” he wrote. However, “taking the facts in the light most favorable to plaintiffs, plaintiffs allege that they relied upon certain representations on defendant’s packaging and paid more than they otherwise would have for a product that contained a risk of PFAS contamination.”
Although Gettleman said the plaintiffs met the bar of alleging individual economic harm based on their purchases, he said they failed to “establish standing for injunctive relief for their individual claims, putative class claims or claims on behalf of the public.”
In both complaints, plaintiffs said they’d consider buying the products in question if Conagra took corrective action. Gettleman said that allegation presumes an injunction rather than compelling he order such relief. He further agreed with Conagra that the plaintiffs didn’t sufficiently allege legal injuries under laws from multiple states in which they don’t reside.
With only some of the complaints remaining, Gettleman refused to dismiss based on Conagra’s challenges to the plaintiffs’ methods for testing microwave popcorn bags, saying such a dispute was more suitable to adjudicate following discovery.
But he ultimately agreed with the company’s position its packaging didn’t mislead reasonable consumers.
Although the Food, Drug and Cosmetic Act enumerates strict rules for listing ingredients, Gettleman said the FDA exempts substances that migrate to food, from equipment or packaging, and agreed reasonable consumers wouldn’t look to an ingredients list for information on PFAS because the FDA regulates those chemicals differently from conventional food ingredients.
“Put another way, the representation on the packaging is correct as a matter of law,” Gettleman wrote. “Thus, the court does not need to evaluate whether plaintiffs’ claims are preempted by federal statute. Moreover, because plaintiffs do not allege independent theories of unjust enrichment, the court also dismisses plaintiffs’ unjust enrichment claims because it dismisses all other claims in both complaints.”
He dismissed both complaints with prejudice.
Plaintiffs have been represented by attorneys Melissa S. Weiner, of Pearson Simon & Warshaw, of Wayzata, Minnesota; Melissa K. Sims, Rachel Soffin Harper T. Segui and Erin Ruben, of the firm of Milberg Coleman Bryson Phillips Grossman, of Chicago; Knoxville, Tennessee; Mt. Pleasant, South Carolina; and Raleigh, North Carolina; and Rachel Dapeer, of Aventura, Florida.
Conagra has been represented by attorneys Angela M. Spivey, Andrew G. Phillips, Jamie S. George and Alan F. Pryor, of Alston & Bird, of Atlanta; and Tobin J. Taylor and Andrew J. Roth, of the firm of Heyl Royster Voelker & Allen, of Chicago.