Troy Backus v. General Mills, Inc. et al

Filing 29

ORDER re: August 17, 2015 hearing. Signed by Judge Thelton E. Henderson on 08/13/2015. (tehlc1, COURT STAFF) (Filed on 8/13/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TROY BACKUS,
Plaintiff,

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v.

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GENERAL MILLS, INC., et al.,

Case No. 15-cv-01964-TEH
ORDER RE: AUGUST 17, 2015
HEARING

Defendants.

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The parties shall come to the August 17, 2015 hearing prepared to address the

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United States District Court
Northern District of California

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following questions.

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For Plaintiff:

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1.

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How has Plaintiff suffered an economic injury, if he was not misled into

purchasing baking mixes and only later realized that they may be unhealthy?
2.

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Why did the Supreme Court’s decision in Clapper v. Amnesty International

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not abrogate the cases Plaintiff cites for the standard for standing based on a probabilistic

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future injury?
3.

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Why does the FDA’s decision to set a compliance date for its final order in

2018 not establish that the continued sale of PHOs is lawful until that time?
4.

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Many of Plaintiff’s cited cases regarding the application of the primary

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jurisdiction doctrine involved misrepresentation claims, not unlawful ingredient claims.

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Why do these cases show that the primary jurisdiction doctrine is inappropriate here?
5.

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Given that the presence of partially hydrogenated oil was disclosed on the

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baking mixes’ labels, why is Plaintiff’s implied warranty of merchantability claim not

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merely a challenge to the sufficiency of General Mills’ labels?

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For Defendant:

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1.

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Why are Plaintiff’s allegations that he suffered inflamed organs from eating

trans fats not sufficient to confer standing in this case?
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Why has Plaintiff not alleged a sufficient economic injury by alleging that he

spent money on food products that are unfit for human consumption?
3.

The Court is not aware of any federal regulation that ever formally

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recognized PHOs as GRAS (as opposed to recognizing that the industry treated PHOs as

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GRAS), and the FDA has now determined that they are not GRAS. Why has Plaintiff not

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therefore plausibly stated a claim that the baking mixes are an adulterated food under

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United States District Court
Northern District of California

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California Health & Safety Code section 110545?
4.

In evaluating the plausibility of Plaintiff’s implied warranty of

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merchantability claim, must the Court consider whether a reasonable consumer would be

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aware of the health risks involved in eating partially hydrogenated oils?

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5.

Given the FDA’s final determination on the GRAS status of PHOs and the

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findings therein, why should the Court apply the primary jurisdiction doctrine in this case,

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when the FDA has indicated it may take up to three years to review food additive

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petitions?

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IT IS SO ORDERED.

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Dated: 08/13/15

_____________________________________
THELTON E. HENDERSON
United States District Judge

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