It's official: Obama axes trans fat The Obama administration is making good on its pledge to all but ban trans fat nationwide.

The Obama administration is making good on its pledge to all but ban trans fat nationwide.

The FDA issued a final decision Tuesday that gives the food industry three years to phase out partially hydrogenated oils, the main source of trans fat, which are still used in a wide variety of products from microwave popcorn to cake frosting.


The government’s goal is to prevent cardiovascular disease and advocates are cheering the move as a historic win for public health. But class-action attorneys are eager to use the ruling — before it takes effect— to file lawsuits against deep-pocketed food companies that have continued to use trans fat, even as the rest of the industry has masterfully reduced its use of trans fat by some 85 percent.

Food industry lawyers are poring over the document to see if FDA said anything that could help shield them from litigation.

“The class action lawyers have got their forks and knives out,” said Stefanie Fogel, partner and co-chair of the food and beverage practice at DLA Piper. Fogel wants to read the entire FDA ruling before weighing in on what exactly it means for the industry, but in general, she said, the agency is making it much easier for plaintiffs to claim that a food product is adulterated for containing trans fat.

But the food industry has a good head start.

Most snacks, frozen foods and baked goods have already moved away from using partially hydrogenated oils. You will no longer find trans fat in Doritos or Oreo cookies, Jolly Time microwave popcorn or most Dunkin Donuts. There are plenty of alternatives to the ingredient, which grew in favor over the past five decades as consumers shunned saturated fats and as food companies learned that partially hydrogenated oils were great for extending shelf life, improving mouth feel and keeping food coloring stable in a variety of products.

Palm oil, fully hydrogenated oils and other modified oils have slowly taken hold in many processed foods that used to contain trans fat, but many companies still make products with partially hydrogenated oils, including General Mills, Nestlé and ConAgra.

FDA’s decision rescinds the “generally recognized as safe” or GRAS status for partially hydrogenated oils. The status does not require FDA’s approval but is supposed to be grounded in scientific consensus. The oils have been considered generally recognized as safe since the late 50s when they started to come into vogue as an alternative to saturated fats.

The FDA, in November 2013, dropped something of a regulatory bomb on trans fat by issuing a tentative decision that partially hydrogenated oils are not GRAS — a move that blindsided many in the industry. FDA’s final ruling gives the food industry until June 2018 to stop using partially hydrogenated oils and shift to only very limited uses that are proven to be safe.

The FDA’s final ruling gives the food industry until June 2018 to stop using partially hydrogenated oils and shift to only very limited uses that are proven to be safe. The decision does not apply to naturally occurring trans fat found in small amounts in some dairy and meat products, but is aimed at the artificial or industrial trans fat added to processed foods.

“Our goal is to minimize trans fat intake as much as possible,” said Susan Mayne, director of the FDA’s Center for Food Safety and Applied Nutrition, on a call with reporters Tuesday.

Public health advocates are thrilled with the Obama administration’s move, part of a broader agenda to nudge Americans toward healthier eating in the face of an obesity and diabetes epidemic. Phasing out trans fat could prevent up to 20,000 heart attacks and 7,000 premature deaths each year, FDA has estimated.

The American Heart Association on Tuesday called the ruling “truly a historic victory for the nation’s health.”

“After years of advocating for the removal of industrially produced trans fat from the country’s food supply, we couldn’t be more gratified that this day has finally come,” said Nancy Brown, the association’s CEO.

Democratic lawmakers also cheered the move. Connecticut Sen. Richard Blumenthal lauded FDA for its decision that will “save lives and make future generations healthier.”

Former White House chef and senior nutrition policy adviser Sam Kass, who worked on the policy before leaving his post in December, called it a “massive win for American families.”

FDA isn’t the first to limit trans fats. New York City, in 2006 under Mayor Michael Bloomberg, passed a ban that applied to restaurants, and California followed suit in 2008. Cooking times and recipes had to be changed, but doughnut makers and other restaurants reported making the adjustment.

The local bans set the precedent for FDA’s move, but the federal government’s decision has much broader implications, especially if it can be interpreted to mean there is no safe level of trans fat, said Michael Reese, an attorney and partner at Reese LLP, a firm that regularly sues food companies for misleading consumers.

FDA’s ruling on trans fat is likely to change the legal landscape and “really open up the floodgates on strict liability claims,” he said.

Reese, who has already sued a handful of food companies, including Wendy’s and Unilever over their use of trans fat, said the plaintiffs’ bar may first target products containing the ingredient if they have the aura of being healthy or are marketed to children. He contends that food companies have known for decades that partially hydrogenated oils are linked to cardiovascular disease and there’s “really no excuse” for keeping them in food products when alternatives exist.

Nestlé and General Mills have already been slapped with class action suits along these lines by the Weston Firm, the same law firm representing Fred Kummerow, a longtime researcher who’s been raising alarm bells about trans fat and cardiovascular disease for decades. Kummerow sued FDA in 2013 for not taking action to ban partially hydrogenated oils.

Greg Weston, the lead attorney on the case against FDA, said Kummerow “is happy the FDA is taking action, but it should have taken place at least 20 years ago, and there is no justification for any sort of further delay or phasing.”

Weston declined to comment on any broader litigation strategy.

“Litigation is not looming, it is a reality,” said one food industry lawyer, pointing to the fact that the Weston Firm has already filed trans fat lawsuits and to a recent Washington Legal Foundation article that called FDA’s trans fat decision “a gift to the litigation industry.”

The food industry has been preparing for the trans fat crackdown for months. As POLITICO reported, the Grocery Manufacturers Association has led a behind-the-scenes effort to craft a petition asking FDA to allow “very limited” uses of partially hydrogenated oils going forward.

The details of the industry’s food additive petition have not yet been released. FDA officials told reporters Tuesday they expect to be able to review the petition within the three-year compliance window. In the meantime, food companies are bracing for lawsuits.

Jenny Hopkinson contributed to this report.