Jacquelyn McGee v. S-L Snacks National, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACQUELYN MCGEE, on behalf of No. 17-55577

herself and all others similarly

situated, D.C. No.

Plaintiff-Appellant, 3:14 cv-2446-

JAH

v.

S-L SNACKS NATIONAL, in place of OPINION

DIAMOND FOODS, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted December 5, 2018

Pasadena, California

Filed December 4, 2020

Before: A. Wallace Tashima and Kim McLane Wardlaw,

Circuit Judges, and Robert W. Pratt,* District Judge.

Opinion by Judge Tashima

*

The Honorable Robert W. Pratt, United States District Judge for the

Southern District of Iowa, sitting by designation.

2 MCGEE V. S-L SNACKS NATIONAL

SUMMARY**

Article III Standing

The panel affirmed the district court’s dismissal for lack

of constitutional Article III standing of a putative class action

brought by a plaintiff-consumer who alleged claims arising

when Diamond Foods, Inc. included partially hydrogenated

oils as an ingredient in Pop Secret popcorn.

The panel held that the plaintiff did not plausibly allege

that, as a result of her purchase and consumption of Pop

Secret, she suffered economic or immediate physical injury,

or that she was placed at substantial risk of adverse

consequences.

Concerning plaintiff’s alleged economic injury, the panel

held that plaintiff had not alleged that she was denied the

benefit of her bargain. Although plaintiff may have assumed

that Pop Secret contained only safe and healthy ingredients,

her assumptions were not included in the bargain, particularly

given the labeling disclosure that the product contained

artificial trans fat. The panel also held that plaintiff failed to

allege an economic injury based on an overpayment theory.

Plaintiff did not allege that Pop Secret contained a hidden

defect, or that Pop Secret was worth objectively less than

what she paid for it.

Concerning plaintiff’s alleged present physical injury, the

panel held that plaintiff had not plausibly alleged that she

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MCGEE V. S-L SNACKS NATIONAL 3

suffered physical injuries due to her consumption of Pop

Secret.

Concerning plaintiff’s alleged future physical injury, the

panel held that plaintiff had not plausibly alleged that her

consumption of Pop Secret substantially increased her risk of

disease.

COUNSEL

Gregory S. Weston (argued), The Weston Firm, San Diego,

California, for Plaintiff-Appellant.

Andrew C. Nichols (argued) and Stephanie A. Maloney,

Winston & Strawn LLP, Washington, D.C.; Amanda L.

Groves, Winston & Strawn LLP, Charlotte, North Carolina;

for Defendant-Appellee.

OPINION

TASHIMA, Circuit Judge:

Plaintiff Jacquelyn McGee purchased and consumed Pop

Secret brand popcorn manufactured by defendant, Diamond

Foods, Inc. (“Diamond”). McGee contends that Diamond

engaged in unfair practices, created a nuisance, and breached

the warranty of merchantability by including partially

hydrogenated oils (“PHOs”) as an ingredient in Pop Secret.

She further alleges that PHOs, the primary dietary source of

industrially produced trans fatty acids (also known as

artificial trans fat), are an unsafe food additive that causes

heart disease, diabetes, cancer, and other ailments. The

4 MCGEE V. S-L SNACKS NATIONAL

district court dismissed the action for lack of constitutional

standing, concluding that McGee failed sufficiently to allege

injury in fact. McGee v. Diamond Foods, Inc., 2017 WL

1135569, at *3 (S.D. Cal. 2017) (“McGee II”); see also

McGee v. Diamond Foods, Inc., 2016 WL 816003 (S.D. Cal.

2016) (“McGee I”).

We hold that McGee has not plausibly alleged that, as a

result of her purchase and consumption of Pop Secret, she

suffered economic or immediate physical injury, or that she

was placed at substantial risk of adverse health consequences.

We therefore affirm.

I. BACKGROUND

McGee alleges that “Diamond manufactures, distributes,

and sells a variety of popcorn products (collectively ‘Pop

Secret’) containing partially hydrogenated oil (‘PHO’), a food

additive banned in many parts of the world because it is the

only dietary source of artificial trans fat, a toxic carcinogen

for which there are many safe and commercially acceptable

substitutes.” First Am. Compl. ¶ 1 (the “complaint”). She

alleges that “PHO causes cardiovascular heart disease,

diabetes, cancer, and Alzheimer’s disease, and accelerates

memory damage and cognitive decline,” and that “[t]here is

‘no safe level’ of PHO or artificial trans fat intake.” Id.

¶¶ 15–16. Her complaint cites a number of studies linking

consumption of artificial trans fat to adverse health effects.

Id. ¶¶ 10–53 & nn. 2–41.

In 2015, the U.S. Food and Drug Administration (“FDA”)

“made a final determination that there is no longer a

consensus among qualified experts that [PHOs] . . . are

generally recognized as safe (GRAS) for any use in

MCGEE V. S-L SNACKS NATIONAL 5

human food.” Final Determination Regarding Partially

Hydrogenated Oils, 80 Fed. Reg. 34,650 (June 17, 2015).

The FDA gave the food industry until June 18, 2018, to

comply with its decision. Id. at 34,653. McGee alleges that,

as a result of the FDA’s determination, Diamond’s inclusion

of PHOs in Pop Secret was unlawful under federal and

California law, Compl. ¶¶ 54–66, 78–85, allegations that

Diamond disputes.1

McGee filed this putative class action against Diamond in

2014. The complaint alleges four causes of action: violation

of the unlawful prong of the California Unfair Competition

Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200–17210;

violation of the unfair prong of the UCL, id.; nuisance, Cal.

Civ. Code §§ 3479–93; and breach of the implied warranty of

merchantability. Compl. ¶¶ 111–44. The complaint seeks

1

Under the Federal Food, Drug, and Cosmetic Act (“FDCA”),

21 U.S.C. §§ 301–399i, any substance that is reasonably expected to

become a component of food is a food additive that is subject to pre-

market approval by the FDA unless it is GRAS among qualified experts.

In light of the FDA’s 2015 determination, McGee alleges that PHOs have

never been GRAS, and hence that their inclusion in Pop Secret violated

federal and California law. Compl. ¶¶ 54–66. Diamond contends that the

use of PHOs was lawful until June 18, 2018, a contention with which the

district court agreed. In addition, Diamond points out that, following the

FDA’s 2015 determination, Congress adopted legislation providing that

“no food that is introduced or delivered for introduction into interstate

commerce that bears or contains a [PHO] shall be deemed adulterated

under sections 402(a)(1) or 402(a)(2)(C)(I) [of the FDCA] by virtue of

bearing or containing a [PHO] until the compliance date as specified in

such order (June 18, 2018).” Consolidated Appropriations Act, 2016, Pub.

L. No. 114-113, § 754, 129 Stat. 2242, 2284 (2015). For purposes of this

appeal, we need not resolve the parties’ dispute about whether Diamond’s

use of PHOs was lawful.

6 MCGEE V. S-L SNACKS NATIONAL

restitution, disgorgement, damages, injunctive relief, and

other remedies.

McGee alleges that she “purchased Pop Secret

approximately once every two to three months for many

years,” consuming “nearly half [a] pound” of trans fat from

Pop Secret since 2008. Id. ¶¶ 68, 92. She alleges that she

was injured by Diamond’s actions in three ways.

First, she alleges that “[t]he amount of trans fat she

consumed in Pop Secret caused her economic injury because

she believed she was purchasing a safe product when she was

not.” Id. ¶ 6. She alleges that, “[w]hen purchasing Pop

Secret, Plaintiff was seeking products of particular qualities,

including products that did not negatively affect blood

cholesterol levels or the health of her cardiovascular system,

and products made with safe, lawful ingredients,” and that

she “purchased Pop Secret believing it had the qualities she

sought based on the natural assumption that food sold in

stores by large companies would not have unsafe and

unlawful ingredients.” Id. ¶¶ 86–87. She alleges that she

“lost money as a result of Defendant’s conduct because she

purchased products that were detrimental to her health and

were unfairly offered for sale in violation of federal and

California law.” Id. ¶ 89. She further alleges that she

“suffered loss in an amount equal to the amount she paid for

Pop Secret” because “Pop Secret is not fit for human

consumption and has a value of $0.” Id. ¶¶ 94, 97.

Second, McGee alleges that “[t]he amount of trans fat she

consumed in Pop Secret . . . caused her physical injury by

harming her heart and blood vessels and substantially

aggravating her age-related cholesterol and insulin

dysregulation.” Id. ¶ 6. She alleges that she suffered

MCGEE V. S-L SNACKS NATIONAL 7

physical injury when she consumed Pop Secret “because

consuming artificial trans fat in any quantity, including the

quantity she actually consumed, inflames and damages vital

organs.” Id. ¶ 90. She further alleges that her consumption

of Pop Secret “permanently degraded her cognitive abilities.”

Id. ¶ 92.

Third, McGee alleges that her consumption of Pop Secret

“substantially increase[d]” her “risk of heart disease, diabetes,

cancer, and death.” Id. ¶ 90.

The district court granted Diamond’s motion to dismiss

the complaint for lack of Article III standing. McGee II, 2017

WL 1135569, at *3. The court was unpersuaded by McGee’s

contention that she suffered an economic injury when “she

purchased a product that was less healthy than expected.”

McGee I, 2016 WL 816003, at *6. The court concluded that

this theory was untenable because “the existence of [artificial

trans fat] in the . . . popcorn was included in the nutritional

label on the product box and Plaintiff does not allege that

Defendant’s popcorn labels were misleading.” Id.

Consequently, McGee’s “purchases were not made on the

basis of false or misleading representations.”

The district court also rejected McGee’s claims of present

and future physical injury. Id. at *5–6. With respect to future

injury, the court concluded that McGee’s “risk of developing

diseases from her consumption of [Diamond’s] Trans Fat

Popcorn is speculative,” because “there are no facts or

reasonable inferences to be drawn from the allegations in

[McGee’s] complaint, or in the studies cited therein, showing

how the trans fat popcorn substantially increased her risk of

harm, much less the probability of that harm being substantial

8 MCGEE V. S-L SNACKS NATIONAL

when she alleges her purchases occurred ‘once every two or

three months over three years.’” Id. at *6.

Having determined that McGee failed sufficiently to

allege injury in fact, and having previously afforded McGee

an opportunity to amend the complaint to cure this deficiency,

the district court dismissed the action with prejudice. McGee

II, 2017 WL 1135569, at *1, *3. McGee timely appealed.

II. STANDARD OF REVIEW

“We review de novo a district court’s determination of

whether a party has standing.” Davis v. Facebook, Inc. (In re

Facebook, Inc. Internet Tracking Litig.), 956 F.3d 589, 597

(9th Cir. 2020).

III. DISCUSSION2

To have Article III standing, “a ‘[p]laintiff must have

(1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to

be redressed by a favorable judicial decision.’” Id. (alteration

in original) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016)). “To establish an injury in fact, a plaintiff must

2

Shortly before oral argument, Diamond, in a Rule 28(j) letter,

conceded that McGee had standing. Despite this concession, however,

because standing implicates the district court’s jurisdiction, we have an

independent obligation to inquire into McGee’s Article III standing. See

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (“[E]very

federal appellate court has a special obligation to satisfy itself not only of

its own jurisdiction, but also that of the lower courts in a cause under

review, even though the parties are prepared to concede it.” (alteration in

original) (quoting Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 73

(1997)).

MCGEE V. S-L SNACKS NATIONAL 9

show that he or she suffered ‘an invasion of a legally

protected interest’ that is ‘concrete and particularized.’” Id.

(quoting Spokeo, Inc., 136 S. Ct. at 1548). “A particularized

injury is one that affects the plaintiff in a ‘personal and

individual way.’” Id. at 598 (quoting Spokeo, Inc., 136 S. Ct.

at 1548). “Where, as here, a case is at the pleading stage, the

plaintiff must ‘clearly . . . allege facts demonstrating’ each

element” of standing. Spokeo, Inc., 136 S. Ct. at 1547

(quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).3

McGee alleges three types of injuries—economic injury,

present physical injury, and future physical injury (i.e.,

increased risk of disease). We address seriatim the

sufficiency of these allegations below.

A. Economic Injury

1. Benefit of the Bargain Theory

McGee contends that she has alleged adequately

an economic injury because when “purchasing

Pop Secret, Plaintiff was seeking products of

particular qualities, including products that

did not negatively affect blood cholesterol

levels or the health of her cardiovascular

system, and products made with safe, lawful

ingredients.” In other words, Ms. McGee did

not receive the benefit she thought she was

3

Many claims are brought under the UCL. Private-plaintiff actions

specifically require economic injury, which “renders standing under [the

UCL] substantially narrower than federal standing under article III . . . .”

Kwikset Corp. v. Super. Ct., 246 P.3d 877, 886 (Cal. 2011).

10 MCGEE V. S-L SNACKS NATIONAL

obtaining—a safe and lawful product—but

rather received a dangerous and unlawful one.

Thus, Plaintiff alleges benefit of the bargain

injury.

We agree with McGee that, “[u]nder the benefit of the

bargain theory, a plaintiff might successfully plead an

economic injury by alleging that she bargained for a product

worth a given value but received a product worth less than

that value.” In re Johnson & Johnson Talcum Powder Prod.

Mktg., Sales Prac. & Liab. Litig., 903 F.3d 278, 283 (3d Cir.

2018). “The economic injury is calculated as the difference

in value between what was bargained for and what was

received.” Id.

A plaintiff, however, must do more than allege that she

“did not receive the benefit she thought she was obtaining.”

(Emphasis added.) The plaintiff must show that she did not

receive a benefit for which she actually bargained. In

Birdsong v. Apple, Inc., 590 F.3d 955 (9th Cir. 2009), for

instance, the plaintiffs claimed “that the iPod’s inherent risk

of hearing loss . . . deprived them of the full benefit of their

bargain because they cannot ‘safely’ listen to music.” Id.

at 961. We disagreed, holding that the plaintiffs’ benefit of

the bargain theory failed because

[t]hey have not alleged that they were

deprived of an agreed-upon benefit in

purchasing their iPods. The plaintiffs do not

allege that Apple made any representations

that iPod users could safely listen to music at

high volumes for extended periods of time. In

fact, the plaintiffs admit that Apple provided

a warning against listening to music at loud

MCGEE V. S-L SNACKS NATIONAL 11

volumes. The plaintiffs’ alleged injury in fact

is premised on the loss of a “safety” benefit

that was not part of the bargain to begin with.

Id.

The same is true here. McGee does not contend that

Diamond made any representations about Pop Secret’s safety.

Although she may have assumed that Pop Secret contained

only safe and healthy ingredients, her assumptions were not

included in the bargain, particularly given the labeling

disclosure that the product contained artificial trans fat. Thus,

even if those expectations were not met, she has not alleged

that she was denied the benefit of her bargain. Absent some

allegation that Diamond made false representations about Pop

Secret’s safety, McGee’s benefit of the bargain theory falls

short. Cf. Johnson & Johnson Talcum Powder, 903 F.3d

at 298 (Fuentes, J., dissenting) (“Estrada alleges that she paid

for a product based, in part, on Johnson & Johnson’s

representation of its safety. That representation was part of

the benefit of her bargain. Because that representation was

false, Estrada did not receive the benefit of her bargain.”).

2. Overpayment Theory

McGee alternatively appears to contend that she suffered

an economic injury because she paid more for Pop Secret

than it was worth. She alleges that she “suffered loss in an

amount equal to the amount she paid for Pop Secret” because

12 MCGEE V. S-L SNACKS NATIONAL

“Pop Secret is not fit for human consumption and has a value

of $0.”4 Compl. ¶¶ 94, 97.

Again, we agree with McGee that overpayment is a viable

theory of economic injury. We have consistently recognized

that a plaintiff can satisfy the injury in fact requirement by

showing that she paid more for a product than she otherwise

would have due to a defendant’s false representations about

the product. See, e.g., Mazza v. Am. Honda Motor Co.,

666 F.3d 581, 595 (9th Cir. 2012) (“Plaintiffs contend that

class members paid more for the [braking system] than they

otherwise would have paid, or bought it when they otherwise

would not have done so, because Honda made deceptive

claims and failed to disclose the system’s limitations. To the

extent that class members were relieved of their money by

Honda’s deceptive conduct—as Plaintiffs allege—they have

suffered an ‘injury in fact.’”); Maya, 658 F.3d at 1069

(“Plaintiffs claim that, as a result of defendants’ actions, they

paid more for their homes than the homes were worth at the

time of sale. Relatedly, they claim that they would not have

purchased their homes had defendants made the disclosures

allegedly required by law. We agree with plaintiffs that these

are actual and concrete economic injuries.”).

This is not, however, a case in which McGee alleges that

she paid more for a product due to Diamond’s deceptive

conduct. She does not allege that Diamond made false

4

McGee asserts benefit of the bargain and overpayment theories of

injury, but she does not assert a diminution in value theory of injury. See

Maya v. Centex Corp., 658 F.3d 1060, 1066 (9th Cir. 2011)

(distinguishing between overpayment injury, which occurs at the time of

sale, and decreased value injury, which occurs after sale). We therefore

do not address it here.

MCGEE V. S-L SNACKS NATIONAL 13

representations—or actionable non-disclosures—about Pop

Secret. Thus, a key element of our overpayment cases—a

defendant’s misrepresentations about a product—is absent

here.

To the extent McGee contends that a plaintiff may rely on

an overpayment theory of economic injury in a case that does

not involve misrepresentations, she raises what appears to be

a novel theory. Nevertheless, her theory appears to find some

support. First, we arguably approved of this theory in

Birdsong. There, the plaintiffs argued that they suffered

economic harm because “the iPod has a defect (an inherent

risk of hearing loss), which caused their iPods to be worth

less than what they paid for them.” 590 F.3d at 961.

Although we rejected this argument, we did so on the narrow

ground that “the plaintiffs have failed to allege a cognizable

defect,” id., rather than treating the theory as more broadly

untenable. Thus, Birdsong arguably may be read to suggest

that, at least in the context of a hidden defect, economic

injury can be established on an overpayment theory absent

misrepresentations.

McGee’s theory also finds some support in the Third

Circuit’s decision in Johnson & Johnson Talcum Powder. In

an earlier case, Koronthaly v. L’Oreal USA, Inc., 374 F.

App’x 257 (3d Cir. 2010), the plaintiff sued a lipstick

manufacturer based on the presence of trace amounts of lead

in the manufacturer’s products. The court held that the

plaintiff had failed to establish an injury in fact, but suggested

that she could have done so by alleging that the product “was

worth objectively less than what one could reasonably

expect.” Id. at 259. Although Koronthaly was a not

precedential decision, the Third Circuit adopted its reasoning

in Johnson & Johnson Talcum Powder, 903 F.3d at 290 n.15.

14 MCGEE V. S-L SNACKS NATIONAL

To resolve this appeal, we need not decide whether, in the

absence of a misrepresentation, an overpayment theory of

economic injury is viable. Even assuming that it is, McGee

has failed to allege injury on that basis here. She does not

allege that Pop Secret contained a hidden defect, as alleged in

Birdsong, or that Pop Secret was worth objectively less than

what she paid for it, as hypothesized in Koronthaly and

Johnson & Johnson Talcum Powder. As McGee concedes,

Pop Secret’s nutritional label disclosed the presence of

artificial trans fat, and the health risks of consuming artificial

trans fat were firmly established by the time of McGee’s

purchases. As McGee’s complaint acknowledges, the

“evidence of trans fat’s horrific impact on the health of

Americans is more than 20 years old.” Compl. ¶ 30. Indeed,

of the two dozen scientific studies cited in the complaint,

nearly two-thirds (15 out of 23) were published by 2008,

when the purchases covered by the complaint began. Id.

¶¶ 15–53 (citing studies and reports from 1994, 1999, 2001,

2002, 2003, 2004 (2), 2005 (2), 2006 (2), 2007 (2), 2008 (2),

2009 (3), 2010, 2011 (2), 2014, and 2015. 15 out of 23 of

these studies were published in or before 2008). Given that

the health risks of consuming Pop Secret were established by

2008, we are not persuaded that the Pop Secret McGee

purchased “was worth objectively less than what one could

reasonably expect.” See Johnson & Johnson Talcum Powder,

903 F.3d at 290 n.15.5

5

Hawkins v. Kroger Co., 906 F.3d 763 (9th Cir. 2018), is not to the

contrary. There, the plaintiff alleged that she purchased bread crumbs in

reliance on a label falsely stating that the product contained “0gr Trans Fat

per serving.” Id. at 767. We concluded that the plaintiff had adequately

alleged economic injury and hence, statutory standing under the UCL,

because she alleged that “she relied upon the label and would not have

bought the product without the misrepresentation.” Id. at 768–69; see also

id. at 772. Here, in contrast, McGee does not allege that she purchased the

MCGEE V. S-L SNACKS NATIONAL 15

In sum, we conclude that McGee has not sufficiently

alleged economic injury on either a benefit of the bargain

theory or an overpayment theory.6

B. Immediate Physical Injury

McGee alternatively contends that she has sufficiently

alleged an injury in fact because she suffered a number of

current physical injuries due to her consumption of Pop

Secret. She alleges that Pop Secret “inflame[d] and

damage[d] [her] vital organs,” “permanently degraded her

cognitive abilities,” and “substantially aggravat[ed] her age-

related cholesterol and insulin dysregulation.” Compl. ¶¶ 6,

90, 92. She further alleges that “[t]here is ‘no safe level’ of

PHO or artificial trans fat intake” and that “consuming

artificial trans fat in any quantity” causes physical injury. Id.

¶¶ 16, 90.

We agree with McGee that these injuries, e.g., damage to

one’s vital organs and permanent degradation of one’s

cognitive abilities, would be sufficient to satisfy Article III

standing for her non-UCL claims. We are not persuaded,

however, that McGee has plausibly alleged that she suffered

these injuries. She does not allege that she has undergone

medical testing or examination to confirm that she suffers

product because of a misrepresentation by Diamond. Kroger is therefore

distinguishable.

6

Although we agree with Diamond that McGee has not alleged an

economic injury, we do not reach Diamond’s argument that “a plaintiff

who consumes a food product suffers no economic injury.” We leave for

another day the question of whether a plaintiff who consumes a product

can nonetheless be deprived of the benefit of her bargain or have overpaid

for the product.

16 MCGEE V. S-L SNACKS NATIONAL

from these conditions or that they were caused by her

consumption of Pop Secret. Her allegations of injury,

therefore, necessarily rely on the proposition that the

consumption of nearly half a pound of artificial trans fat over

several years invariably results in such injuries.

The studies cited in her complaint do not support this

inference. For example, although the complaint asserts that

“consuming artificial trans fat in any quantity . . . inflames

and damages vital organs,” Id. ¶ 90, the studies upon which

the complaint relies do not substantiate this assertion. See

D. Mozaffarian & R. Clarke, Quantitative Effects on

Cardiovascular Risk Factors and Coronary Heart Disease

Risk of Replacing Partially Hydrogenated Vegetable Oils

with Other Fats and Oils, 63 Euro. J. Clinical Nutrition S22

(2009); Esther Lopez-Garcia et al., Consumption of Trans

Fatty Acids Is Related to Plasma Biomarkers of Inflammation

and Endothelial Dysfunction, 135 J. Nutrition 562 (2005);

Dariush Mozaffarian et al., Trans Fatty Acids and Systemic

Inflammation in Heart Failure, 80 Am. J. Clinical Nutrition

1521 (2004); David J Baer et al., Dietary Fatty Acids Affect

Plasma Markers of Inflammation in Healthy Men Fed

Controlled Diets: A Randomized Crossover Study, 79 Am. J.

Clinical Nutrition 969 (2004). They show a link between the

consumption of trans fatty acids and systemic inflammation,

but they do not assert that consumption of artificial trans

fat—in the amounts alleged by McGee—invariably (or even

ordinarily) inflames or damages vital organs.

Given the studies upon which McGee relies, these

allegations are simply too speculative to support standing,

even at the pleading stage. As the Supreme Court

emphasized in Spokeo, Inc., “[t]o establish injury in fact, a

plaintiff must show that he or she suffered ‘an invasion of a

MCGEE V. S-L SNACKS NATIONAL 17

legally protected interest’ that is ‘concrete and particularized’

and ‘actual or imminent, not conjectural or hypothetical.’”

136 S. Ct. at 1548 (quoting Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992)). “[A]t the pleading stage, the

plaintiff must ‘clearly . . . allege facts demonstrating’ each

element.” Id. at 1547 (alteration in original) (quoting Warth,

422 U.S. at 518). McGee’s allegations do not satisfy that

standard.

McGee’s reliance on Covington v. Jefferson County,

358 F.3d 626 (9th Cir. 2004), is misplaced. In Covington, the

plaintiffs suffered a concrete injury: the operation of a

landfill across the street from their home concretely

“affect[ed] their enjoyment of their home and land” by,

among other things, “caus[ing] them to suffer from watering

eyes and burning noses.” Id. at 638. Here, by contrast,

McGee has not plausibly alleged that her consumption of Pop

Secret either resulted in the physical injuries she asserts or

diminished her quality of life.

In sum, McGee has not plausibly alleged that her

consumption of Pop Secret caused her immediate physical

injury.

C. Future Physical Injury

McGee alternatively contends that she has adequately

alleged an injury in fact because her consumption of Pop

Secret has substantially increased her risk of disease.

Once again, McGee relies on a viable legal theory to

establish standing for her non-UCL claims. “A plaintiff

threatened with future injury has standing to sue ‘if the

threatened injury is ‘certainly impending,” or there is a

18 MCGEE V. S-L SNACKS NATIONAL

“substantial risk that the harm will occur,”’” Stevens v.

Zappos.com, Inc. (In re Zappos.com, Inc.), 888 F.3d 1020,

1024 (9th Cir. 2018) (quoting Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014)). And we have

consistently held that a credible threat of future harm is

sufficient to establish an injury in fact. See, e.g., Krottner v.

Starbucks Corp., 628 F.3d 1139, 1142–43 (9th Cir. 2010);

Covington, 358 F.3d at 641; Cent. Delta Water Agency v.

United States, 306 F.3d 938, 948–50 (9th Cir. 2002); Hall v.

Norton, 266 F.3d 969, 976 (9th Cir. 2001).

McGee, however, has not plausibly alleged that her

consumption of Pop Secret substantially increased her risk of

disease. She alleges that “consuming artificial trans fat in any

quantity, including the quantity she actually consumed, . . .

substantially increases the risk of heart disease, diabetes,

cancer, and death.” Compl. ¶ 90. The studies cited in the

complaint, however, do not support this contention. While

McGee alleges that she consumed about 0.2 grams of

artificial trans fat a day—nearly half a pound over several

years—the studies she relies on associate serious health risks

with greater levels of consumption. A 2006 article that the

complaint cites six times, for example, describes the adverse

health effects associated with consuming 2 to 7 grams of

artificial trans fat per day (more than 10 times the quantity

McGee consumed) and suggests that consuming less than 1

gram of artificial trans fat per day (twice McGee’s

consumption) “may be necessary to avoid adverse effects.”

Dariush Mozaffarian et al., Trans Fatty Acids and

Cardiovascular Disease, 354 New Eng. J. Med. 1601, 1609

(2006). Thus, although the complaint alleges that there are

serious health risks associated with the consumption of

artificial trans fat, even in small quantities, we are not

persuaded that McGee has plausibly alleged that her limited

MCGEE V. S-L SNACKS NATIONAL 19

consumption of Pop Secret placed her at substantial risk of

disease. Accordingly, McGee has not sufficiently alleged

injury in fact based on her risk of future physical injury.

IV. CONCLUSION

We hold that McGee has not plausibly and sufficiently

alleged an injury in fact. The district court therefore properly

dismissed this action for lack of Article III standing. The

judgment of the district court is

AFFIRMED.