982 F.3d 700
9th Cir.2020Background
- Plaintiff Jacquelyn McGee bought and ate Pop Secret microwave popcorn containing partially hydrogenated oils (PHOs), the primary source of industrial trans fats, roughly once every 2–3 months since 2008 (about 0.2 g/day; ~½ lb total over several years).
- McGee sued Diamond Foods asserting (1) unlawful and unfair practices under California’s UCL, (2) nuisance, and (3) breach of implied warranty of merchantability, alleging PHOs cause heart disease, diabetes, cancer, cognitive decline, and that there is "no safe level" of PHOs.
- FDA concluded in 2015 that PHOs are not GRAS (Final Determination), with a compliance date of June 18, 2018; McGee alleges PHO inclusion became unlawful under federal and California law.
- McGee asserted three injuries for Article III standing: economic loss (benefit-of-the-bargain or overpayment), immediate physical injury from consumption, and increased future risk of disease.
- The district court dismissed for lack of Article III standing; McGee appealed. The Ninth Circuit affirmed, holding she failed to plausibly allege a concrete, particularized injury in fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Economic injury — benefit of the bargain | McGee paid for a product she expected to be safe and lawful; she didn’t get that benefit | Diamond made no false safety representations; labels disclosed trans fat | Benefit-of-the-bargain fails: no allegation Diamond made misrepresentations about safety |
| Economic injury — overpayment | Pop Secret was worth less (value $0) because it contained unlawful/unsafe PHOs | No misrepresentation or hidden defect; health risks were known and label disclosed trans fat | Overpayment theory not established here; plaintiff didn’t plead hidden defect or objective diminution in value |
| Immediate physical injury | Consumption damaged organs, aggravated cholesterol/insulin dysregulation, and degraded cognition even at the amounts she consumed | Alleged injuries are speculative; no medical testing or causal allegations tying her conditions to Pop Secret | Immediate physical injury not plausibly alleged; studies cited don’t show that her level of consumption inevitably caused those injuries |
| Future physical injury (increased risk) | Any quantity of artificial trans fat substantially increases risk of heart disease, diabetes, cancer, death | Her alleged intake (~0.2 g/day) is far below levels that studies associate with substantial risk | Future injury not plausibly alleged; her limited consumption does not show a substantial risk of harm |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (injury-in-fact must be concrete and particularized; pleading standard for standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, particularized, and actual or imminent injury)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (appellate courts must assure subject-matter jurisdiction)
- Birdsong v. Apple, Inc., 590 F.3d 955 (9th Cir. 2009) (benefit-of-the-bargain and hidden-defect analysis in consumer-product context)
- Johnson & Johnson Talcum Powder Prod. Mktg., 903 F.3d 278 (3d Cir. 2018) (overpayment/diminution arguments in product cases)
- Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) (economic injury via overpayment or reliance on deceptive conduct)
- Hawkins v. Kroger Co., 906 F.3d 763 (9th Cir. 2018) (standing where purchase relied on a false label representation)
- Covington v. Jefferson County, 358 F.3d 626 (9th Cir. 2004) (concrete physical harms from nearby landfill supported standing)
- In re Zappos.com, Inc., 888 F.3d 1020 (9th Cir. 2018) (substantial-risk theory for future injury)