FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JA C Q UE LY

N M C G E E , on behalf of herself and all others sim ilarly situated, Plaintiff-Appellant
,

v

.

S-L S N A C K S NAT I O

N AL , in place of D I AM OND F O O D S , I N C .,

Defendant-Appellee. No. 17-55577

D.C. No. 3:14 cv-2446- JAH

OPINION

Appeal from

the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Argued and Subm itted December 5, 2018

Pasadena, California

Filed Decem

ber 4, 2020

Before: A. W allace Tashim a and Kim McLane W ardlaw, Circuit Judges, and Robert W . Pratt, * District Judge.

Opinion by Judge Tashim a

* The Honorable Robert W

. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation.M C G E E V

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SUMMARY * *

A rticle III Standing

The panel affirm ed the district court’s dism issal f or lack of constitutional Article III standing of a putative class action brought by a plaintiff-consum er who alleged claim s arisi n g when Diam ond Foods, Inc. included partially hydrogenated oils as an ingredient in Pop Secret popcorn.

The panel held that the plaintiff did not plausi b l y a llege th a t, as a result of her purchase and consum ption of Pop Secret, she suffered econom ic or imm ediate physical injury,

o r that she w as placed at substantial risk of adve r s e consequences.
Concerning plaintiff’s alleged econom ic injury, the panel held that p laintiff had not alleged tha t s h e was denied the benefit o f h er bargain. A lthough plaintiff m ay have assum ed that P op Secret contained on l y safe and healthy ingredients, her assum ptions were not included in the bargain, particularly given the labeling d isclosure that the product contained artificial trans fat. The panel also held that plaintiff failed to allege an econom ic injury based on an overpay m ent theory. Pl a intiff did n ot allege that Pop Secret contained a hid d e n defect, or that Pop S ecret was worth objectively less than what she paid for it.

Concerning plaintiff’s alleged p resent physical injury, the panel held that plaintiff h ad not p lausibly alleged that she

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.M C G E E V

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suffered physical injuries due to her consum ption of Pop Secret.

Concerning p laintiff’s alleged future physical injury, the panel h eld that plaintiff h ad not plausibly alleged th at her

consum ption of Pop Secret substantially increased her risk o f disease.

C OUNSEL

Gregory S. W eston (argued), Th e W eston Firm
, San Diego, California, for Plaintiff-Appellant.

An dr ew C

. Nichols (argued) and Stephanie A. Maloney, W inston & Strawn LLP, W ashington, D.C.; Am anda L. Groves, W inston & S trawn LLP, Charlotte, N orth C arolina; for Defendant-Appellee.

OPINION

TASHIMA, Circuit Judge:

Plaintiff Jacquelyn McGee purchased and consum ed Pop Secret brand popcorn m anufactured by defendant, Diam ond Foods, Inc. (“Di am ond”). McGee contends that Diam ond engaged in unfair practices, created a nuisance, and breached the warranty of m erchantability by including p artially hydrogenated oils (“PHOs”) a s an ingredient in P op Secret. She further alleges that PHOs, the prim ary dietary source of industrially produced trans fatty a ci ds (also known as artificial trans fat), are an un s afe f ood additive that causes heart disease, diabet e s , c ancer, and other ailm ents. TheM C G E E V

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district court dism issed the action for lack of constitutional standing, concluding that McGee failed sufficiently to allege injury in fact. McGee v. Diamo n d Fo o d s , Inc.
, 2017 W L 1135569, at *3 (S.D. C al. 2017) (“ McGee II

”); s e e a l

so McGee v. Diamond Foods, Inc.
, 2016 W L 816003 (S.D. Cal. 2016) (“McGee I

”).

W e hold that McGee has n ot p l au sibly alleged that, as a result of h er purchase and consum ption of Pop Secret, she suffered econom ic o r imm ediate physical injury, o r that she

was placed at substantial risk of adverse health consequences. W e therefore affirm

.

I. BACKGROUND

McGee alleges that “Diam ond m anufactures, distributes, and sells a variety of po pc o rn products (collectively ‘Pop Secret’) containing p artially hy d ro g e n ated o i l (‘P H O ’), a food additive banned in m any parts of the world because it is the

o nly dietary source of artificial trans fat, a toxic carcinoge n for which there are m any safe and comm ercially acceptable substi tut e s

. ” First Am

. Com pl. ¶ 1 (the “com

plaint”). She alleges that “PHO causes cardiovascular heart disease, diabetes, cancer, and Alzheim er’s disease, and accelerates

m em ory dam age and cognitive d ecline,” and that “[t]here is ‘no safe level’ of PHO or artificial trans fat intake.” Id. ¶¶ 15–16. H er com

plaint cites a num

ber of studies linking

consum ption of artificial tr an s fat to adverse health effects. Id. ¶¶ 10–53 & nn. 2–41.

In 2015, the U.S. F ood and Drug Adm inistration (“FDA”) “m ade a final determ ina t i on that there is n o longer a
con s ensus am ong qualified experts that [PHOs]

. . . are generally recognized as s afe (GRAS) for any use inM C G E E V

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hum an food.” F inal D eterm ination Regarding Part i a lly Hydrogenated Oils, 80 Fed. Reg. 34,650 (June 17, 2015). The FDA gave the food industry until June 18, 2 018, to

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

as a result of the FDA’s determ ination, Diam ond’s inclusion of PHOs in Pop Secret was unlawful under federa l and Califo rnia law, Com

pl. ¶¶ 54–66, 78–85, allegations that Diam ond disputes. 1

McGee filed this putative class action against Diam ond in 2014. The com

plaint alleges four causes of action: violation of the unlawful prong of the Cali fornia Unfair Com petition Law (“UCL”), Cal. B us. & Prof. Code §§ 172 0 0 –17210; violation of the unfair prong of the UCL, id .; nuisance, Cal. Civ. Code § § 3479–93; and breach of the im plied w arranty o f

m er c h antability. Com

pl. ¶¶ 111–44. The com plaint seeks

1 Under the Federal Food, Drug, and Cosm etic Act (“FDCA”), 21 U.S. C

. §§ 301–399i, any substance that is reasonably expected to becom e a com

ponent o f f

ood is a food additive that is subject to prem arket approval by the FDA unless it is GRAS am ong qualified experts. In light of the FDA’s 2015 determ ination, McGee alleges that PHOs have

never been GRAS, and hence that th e i r i n c l usion in Pop Secret violated federal and California law. Com pl. ¶¶ 54–66. D iam ond contends that the

use o f P H Os was lawful until June 18, 2018, a contention with which the district court agreed. In addition, Diam ond p oints out t hat, following the FDA’s 2015 d eterm ination, Congress adopted legislation providing t hat “no food that is introduced or delivered for introduction into interstate

comm erce that b ears or contains a [PHO] s h a l l b e deem ed adulterated under sections 402(a)(1) or 402(a)(2)(C)(I) [of the FDCA] by virtue o f bearing or containing a [PHO] until the com pliance d ate as specified in such order (June 1 8, 2018).” Co n so l i d at ed Ap propriations Act, 2 0 16, Pub. L. No. 114-113, § 754, 129 Stat. 2242, 2284 (2015). For purposes of t h is appeal, w e n eed not resolve t he parties’ dispute about whether Diam ond’s use of PHOs was lawful.M C G E E V

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r estitution, disgorgem ent, dam ages, injunctive relief, an d other rem edies.

M c Ge e alleges that she “purchased Pop Secre t approxim ately o n c e every two to three m onths for m any years,” consum ing “nearly half [a] pound” o f trans fat from Pop Secret since 2008. Id. ¶¶ 68
, 92

. She alleges that she was injured by Diam ond’s actions in three ways.

First, she alleges th a t “[t]he am o unt of trans fat she

consum ed in Pop Secret caused her econom ic injury because she believed she was purchasing a safe product when she was not.” I d

. ¶ 6. S h e alleges that, “[w]hen purchasing Pop Secret, P laintiff was seeking products of particular qualities, including products that did not negatively a ffect blood cholesterol levels or the h ealth of her cardiovascular system , and products m ade with s afe, lawful ingredients,” and that she “purchased Pop S ecret believing it h ad th e qualities she sought based on the n a tural assum p tion that food sold in stores b y large com

p an ies would not have unsafe and unlawful ing r e d i ents.” Id. ¶¶ 86–87. She alleges that she “lost m oney as a result of Defendant’s conduct because she purchased p roducts that w ere detrim ental to her h ealth and

were unfa irly offered for sale in v iolation of federal and California law.” Id. ¶ 8 9. Sh e furth er alleges that she “suffered loss in an am ount equal to the am ount she paid for Pop Secret” because “Pop Secret is not fi t f or hum an
consum ption and has a value of $0.” Id. ¶¶ 94, 97.

Second, McGee alleges that “[t]he am ount o f trans f at she

c o n s um ed in Pop Secret

. . . caused her physical injury b y harm ing her heart and blood vessels and substantially

a g gravating her age-related cholesterol and insulin dy sregulation.” Id. ¶ 6. She alleges that she suffere dM C G E E V

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p hysical injury when she consum ed Pop Secret “be c aus e
consum ing artificial trans f at in any quantity, including the quantity she actually consum ed, inflam es and dam ages vital organs.” Id

. ¶ 90. She further alleges that her consum ption of Pop S ecret “perm anently degraded her cognitive abilities.” Id. ¶ 92.

Third, McGee alleges that h er consum ption of P o p Secret “su b stan tially i n crease[ d ]” her “risk of heart d isease, diab etes, cancer, and death.” Id. ¶ 90.

The d istrict court g ranted Diam ond’s m otion to di s m iss the com plaint for lack of Article III standing. McGee II
, 2017 W L 1135569, at *3. The court was un persuaded by McGee’s contention that she suffered an econom ic injury when “she purchased a p r o d

u ct that was less healthy than expected.” McGee I
, 2016 W L 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 produ c t box and Plaintiff does not allege that Defendant’s popcorn labels were m isleading.” Id. Co n s equently, McGee’s “purchases were not m ade on the basis of false or m isleading representations.”

The district court also rejected McGee’s claim s of present and future physical injury. Id. at *5–6. W ith respect to future injury, the court concluded that McGee’s “risk of d eveloping dis e ases from her consum ption of [Diam ond’s] T rans Fat Popcorn is specula t i ve,” because “there are no facts o r reasonable inferences to be drawn from th e allegations in [McGee’s] com

plaint, o r in the studies cited therein, showing how the trans fat popcorn substantially increas ed her risk o f harm
, m uch less the p robability of that harm being substantialM C G E E V

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when she alleges her purchases occurred ‘once every two o r three m onths over three years.’” Id. at *6.

Having determi ned that McGee failed sufficiently to allege injury in fact, and having previously afforded McGee

an opportunity to am end the com plaint to cure this deficiency, the district court dism issed the action with prejudice. McGee II , 2017 W L 1135569, at *1, *3. McGee tim ely appealed.

II. STANDARD OF REVIEW

“W e review de novo a district court’s determ inati o n o f 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. DISCUSSION 2

To have Article III standing
, “a ‘[p]laintiff m u st have (1) suffered an injury in fact, (2) that is f airly 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 m ust

2 Shortly before oral argum ent, D iam ond, in a Rule 28(j) lette r,
c o n c eded that McGee had standing. Despite this concession, however, because standing im

plicates t he district court’s jurisdiction, we have an independent obligation to inquire i nto 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 o f its own jurisdiction, but also that of t he lower courts in a cause under review, even t

hough t he parties are p repared to concede it.” (alteration in original) (quoting Arizonans for O f f

. Eng. v. Arizona
, 520 U.S. 43, 7 3 (1997)).M C G E E V

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sho w 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 an d 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 m

ust ‘clearly

. . . a llege facts dem onstrating’ each elem ent” of standing. Spoke o , Inc.
, 136 S. Ct. at 1547 (quoting Warth v. Seldin , 422 U.S. 490, 518 (1975)). 3

McGee alleges three types of injuries—econom ic injury, present physical injury, and futur e physical injury (i.e., increased risk of disease). W e address seria tim the sufficiency of these allegations below.

A. Economic Injury

1. Benefit of the Bargain Theory

McGee contends that she has alleged adequately

an eco n o m ic in

ju ry b e cau se wh en “purchasin g Pop Secret, Plaintiff was seeking products o f particular qualities, including products th at did not negatively affect blood cholest erol level s or the health of her cardiovascular system , and products m ade wi th safe, lawful ingredients.” In other words, Ms. McGee did not receive th e benefit she thought she was

3 Many claim s are brought under the UCL. Private-plaintiff actions specifically require econom ic injury, which “renders standing under [the UCL] substantially n arrower than federal standing under article III

. . . .” Kwikset Corp. v. Super. Ct. , 246 P.3d 877, 886 (Cal. 2011).M C G E E V

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obtaining—a safe and lawful product—but rather received a d angerous and unlawful one. Thus, Plaintiff alleges benefit o f the barg a i n injury.

W e agree with McGee that, “[u]nd e r the benefit of the bargain theory, a p laintiff m ight successfully plead an
econom ic injury by alleging that she b argained for a product worth a g iven value b ut received a produ c t worth less than that value.” In re Johnson & Johnson Talcum Powder Prod. Mktg., Sales Prac. & Liab. Litig.
, 9 03 F.3d 278, 283 (3d Cir. 2018). “The econom ic injury is calculated as the difference in value between what was bargained for and wh at was received.” Id.

A plaintiff, however, m

ust do m ore than allege that she “did not receive the benefit she thought she w as obta i n in g. ” (Em phasis added.) The plainti ff m ust show that she did not receive a benefit for which s h e actually bargained

. In Birdsong v. A

pple

, I nc. , 590 F .3d 955 (9th Cir. 2 009), for instance, the plaintiffs claim ed “that the iPod’s inherent risk of hearing loss

. . . deprived th em of the full benefit of their b argain because they cannot ‘safely’ listen to m usic.” Id. at 961. W e disagreed, holding that the p laintiffs’ benefit o f the bargain theory failed because

[t]hey have not a ll eged that they w ere deprived of an agreed-upon ben efit in p urchasing their iPods. The plaintiffs do n o t

a llege that Apple m ade any representations that iPod users could safely listen to m usic at high volum es for extended periods of tim e. In fact, the plaintiffs adm it that Apple provi d ed

a warning against listening to m usic at loudM C G E E V

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volum es. The plaintiffs’ alleged injury in fact is prem ised on the loss o f a “safety” benefit that was not part o f the bargain to begin with.

Id.

The sam e is true here. McGee does not contend that Diam ond m ade any representation s ab o ut P o p S ecret’s safety. Although she m ay h ave assum ed that Pop Se cret contained only safe and healthy ingredients, her assum ptions were not included in the b argain, part i c ul arly given the labeling disclosure th at the product contained artificial trans fat. Thus,

even if those expectations w ere n o t m et, she has not alleged that she was denied the benefit of her bargain. Absent som e allegation th at D i am o n d m a d e f alse rep r esentations about Pop Sec r e t’s safety, McGee’s benefit of the bargain theory falls short. C f. Johnso n & Johnson Talcum Powder
, 903 F.3d at 298 (Fuentes, J., dissenting) (“Estrada alleges that she paid for a product based, i n part, on Johnson & Johnson’s representation of its safety. That represent a tion w as part o f the b enefit o f h e r b argain. 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 e conom ic injury because she paid m ore for Pop Secr et than it was worth. She alleges that she “ s u ffered loss in an

am ount equal to the am ount she paid for Pop Secret” becauseM C G E E V

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“Pop Secret is not fit for hum an consum ption and has a value of $0.” 4 Com

p l. ¶¶ 94, 97.

Again, we agree with McGee that overpaym ent is a viable theory of econom ic injury. W e have consistently recognized that a plaintiff can satisfy the injury in fact r e qu i r e m ent by showing that she paid m ore f or a p roduct 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 m em

bers paid m ore for the [braking system ] than they otherwise w ould have paid, or bought it when they otherwise would not have done so, because Honda m ade de c eptive claim s and failed to disclose the system ’s lim itations. To the extent that class m em

bers were relieved of their m oney 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 m ore for their h o m es than the hom es were worth at the tim e of sale. Relatedly, they claim that they would not have purchased their hom es h a d defendants m ade the disclosures allegedly required by law. W e agree with plaintiffs that these are actual and concrete econom ic injuries.”).

This is not, however, a case in which McGee alleges that she paid m ore f

or a p roduct du e t o Diam ond’s deceptive conduct. She does n ot allege that Diamo n d m ade false

4 McGee asserts benefit of th e bargain and overpaym ent theories o f injury, but she d oes not assert a dim inution in value theory o f injury. See Maya v. Centex C

o r p

. , 658 F.3d 1060, 1066 (9th Cir. 2011) (distinguishing between o verpaym ent injury, which occurs at the tim e o f sale, and decreased value injury, which occurs after sale). W e therefore do not address it here.M C G E E V

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representatio ns—or actionable non-disclosures—about Pop Secret. T hus, a key el e me n t of our o verpaym ent cases—a defendant’s m isrepresentations about a product—is absent here.

To the extent McGee contends that a plaintiff m ay rely on

an overpaym ent theory of econom ic injury in a case that does not involve m isrepresentations, she raises what appears to be

a novel theory. Nevertheless, her theory appears to find som e support. First, we arguably approved of this th eory in Birdsong

. There, the plaintiffs ar g u ed that they suffered

econ o mi c harm because “the iPod h as a defect (an inherent

r i s k o f hearing loss), which caused their iPods to be w orth less than what th e y paid for them .” 590 F .3d at 961. Although we rejected this argum ent, we did so on the narrow ground that “the plaintiffs have failed to allege a cognizable defect,” id.
, r a ther than treating the theory as m ore broadly untenable. Thus, Birdsong arguably m ay be read to suggest that, at least in th e co n t e xt of a hidden defect, econom ic injury can be establ ished on an overpaym ent theory absent

m isrepresentations.

M c Gee’s theory also finds som e support in the Th i r d Circuit’s decision in Johnson & Johnson Talcum Powder

. In

an earlier case, K

oronthaly v. L’Oreal USA, Inc.
, 374 F. App’x 257 (3d Cir. 2010), the plaintiff sue d a l i p stick

m anufacturer based on the presence of trace am ounts of lead in the m anufacturer ’s p roducts. T he court held that the plaintiff had failed to establish an injury in fact, but suggested that she could h ave done so by alleging that the product “was worth o bjectively less than what o ne could reasonably expect.” Id. at 259. Although Koronthaly was a not precedential decision, the Third Circuit adopted its reasoning in Johnson & Johnson Talcum Powder
, 9 03 F.3d at 2 90 n.15.M C G E E V

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To resolve this appeal, we need not decide whether, in the absence of a m isrepresentation, an overpaym ent theory o f

ec o n o mi c injury is viable. Even assum ing that it is, McGee has failed t o al l e g e i njury o n that basis here. She does not allege that Pop Secret contained a hidden defect, as alleged in Birdsong
, or that Pop Secret was w orth objectively less than what she paid for i t, as hypothesized in K oronthaly and Johnson & Johnson T

alcum Powder

. As Mc Ge e concedes, Pop Secret’s nutr i t ional label disclosed the presence o f artificial trans fat, and the health risks of consum ing artificial trans fat were firm ly established b y the tim e of McGee’s purchases. As McGee’s com plaint acknowledges, the “evide n c e of trans fat’s horrific im pact on the health o f Am ericans is m ore than 20 years old.” C om pl. ¶ 30. Indeed, of the two do z e n s c i entific studies cited in the com plaint,

near l y two -thirds (15 out of 23) were published by 2008, when the p ur c hases covered by the com plaint 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, 2 01 1 ( 2 ), 2 0 14, and 2015. 15 out of 23 o f these studies were p ublished in o r before 2008). G iven that the h ealth risks of consum ing Pop S ecret were established by 2008, we are not persuaded that the Pop Secret McGee purchased “was worth objecti v e l y less than what one could reasonably expect.” See Johnso n & Jo h n so n 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 b read crum b s in reliance on a label falsely stating t hat the product contained “0gr Trans Fat per serving.” Id. at 767. W e concluded that the plaintiff had adequately alle g e d e c onom ic i njury and hence, statutory standing under the UCL, because she alleged t

hat “she relied upon the label an d w o ul d not have bought t he product without the m i srepresentation.” Id. at 768–69; see also id. at 772. Here, i n contrast, McGee d oes not allege that she purchased theM C G E E V

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In sum , w e conclude that McGee h as n o t su fficiently alleged econom ic injury on either a benefit of the bar g ain theory or an overpaym ent theory. 6

B. Immediate Physical Injury

McGee alternatively contends that s h e has sufficiently alleged an injury in fact because she suffe r e d a num ber o f current physical injuries due to her c o n s ump tion of Pop Secret. She alleges that Pop Se c ret “inflam e[d] and dam age[d] [her] vital organs,” “perm anently degraded her cognitive abilities,” and “substantially aggravat[ed] her agerelated cholesterol and insulin dy s r e g ulation.” Com pl. ¶¶ 6, 90, 92. She further alleges that “[t]here is ‘ n o s afe level’ o f PHO or artificial trans fat intake” and tha t “consum ing artificial trans fat in any quantity” causes physical injury. Id. ¶¶ 16, 90.

W e agree with McGee that these injuries, e.g., dam age to one’s vital organs and perm anent degradation of one’s cognitive abilities, would be sufficient to s atisfy Article III stan d i n g f

or her non-UCL claim s. W e are n ot persuaded, however, that McGee has plausibly alleged that she suffered these injuries. She does not allege that she has und e r gone

m edical testing or exam ination to confirm that she suffers

product because of a m isrepresentation by Diam ond. Kroger i s therefore distinguishable.

6 Although we agree with Diam ond that McGee has not alle g e d an
econom ic injury, w e d o not r each D iam ond’s argum ent that “a plaintiff who consum es a food product suffers no econom ic injury.” W e leave f o r another day t

he question o f whether a plaintiff who c o n s um e s a product

can nonetheless be deprived of the benefit of her bargain or have overpaid for the product.M C G E E V

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from these conditions o r that they were caused by her

consum ption of Po p Secret. Her allegations of injury, therefore, necessarily rely on th e proposition that the

consum ption of nearly half a pound of artificial trans fat over several years invariably results in such injuries.

The studies cited in her com p lain t d o n o t support this inference. For exam

ple
, although the com

plaint asserts that “consum ing artificial trans fat in any quantity

. . . infl am es and dam ages vital o rg ans,” Id. ¶ 90, the studies upon which the com plaint relies do not substant iate this assertion. See D. Mozaffarian & R. Clarke, Quantitative Effects on Cardiovascular Risk Factors and Coronary Heart Disease Risk o f Replacing Partially H

ydro genated V

egetable Oils with Other Fats and Oils , 63 Euro. J. Clinical Nutrition S22 (20 0 9) ; E sther Lopez-Garcia et al., C onsumption of T

rans Fatty Acids Is Related to Plasma Biomarkers of Inflammation and Endothelial Dys

function
, 1 35 J. Nutrition 562 (2005); Dariush Mozaffarian e t al., Trans F atty Acids and Systemic Inflammation in Heart F

ailure , 80 Am . J. Clinical Nutrition 1521 (2004); Da v i d J Baer et al., Dietary Fatty A cids Affect Plasma Mark

e rs 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

consum ption of trans fatty acids and system ic inflamm ation, but they do not assert that consum ption o f artificial trans fat—in the am ounts alleged by McGee—invariably (or even ordinarily) inflam es or dam ages vital organs.

Given the studies upon which Mc Gee relies, these allegations are sim

ply too speculative to support standing,

even at th e pleading stage. A s the Suprem e Court

em phasized in Spokeo, Inc.
, “[t]o e s t ablish injury in fact, a plaintiff m

ust show th at he or she suffered ‘an invasion of aM C G E E V

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legally protected interest’ that is ‘concrete and particularized’ and ‘actu a l or imm inent, n ot conjectural or hypothetical.’” 136 S. Ct. at 1548 (quoting Lujan v. Defs. of Wildlife
, 504 U .S. 555, 560 (1992)). “[A]t the pleadin g stage, the plain tiff m

ust ‘clearly

. . . allege facts dem onstrating’ each elem ent.” 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 C ovington v. Jefferson County
, 358 F.3d 626 (9th C ir. 2004), is m isplaced. In C ovington , the plaintiffs suffered a concrete in j ury : the operation of a l an d fill across the street from their hom e concretel y “affect[ed] their enjoym ent of th e i r hom e and land” by,

am ong other things, “caus[ing] them to suffer from watering eyes and b urn i n g n o s e s.” Id. at 638. Here, by contrast, McGee has not plausibly alleged that her consum ption of Pop Secret either resulted in the physical injuries she asserts o r dim inished her quality of life.

In sum , McGee has not p lausibly alleged that her

con sum ption o f Pop Secret caused her imm ediate physical injury.

C. Future Physical Injury

McGee alternatively contends that she has adequately alleged an injury i n fact b ecause her consum ption of Pop Secret has substantially increased her risk of disease.

Once again, McGee relies on a viable legal theory to establish standing for h er non-UCL claim s. “A plaintiff threatened with f

uture injury has standing to s u e ‘if the threatened injury is ‘certainly im pending,” or th e r e is aM C G E E V

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“substantial risk that the harm will oc c ur ,”’” S tevens v. Zappos.com, Inc. (

In re Zappos.com, Inc.)
, 8 8 8 F.3d 1020, 1024 (9th C ir. 2018) (quoting Su s a n B. Anthony List v. Driehaus
, 573 U.S. 149, 158 (2014)). An d we have consistently held that a credible threat of futur e h arm is sufficient to establish an injury in fact. See, e.g. , Krottner v. Starbucks Corp.
, 628 F .3d 1139, 1142–43 (9th C ir. 2010); Covington
, 3 58 F.3d at 641; Ce n t

. Delta Water Agency v. United States
, 306 F.3d 938, 948–50 (9th Cir. 2002); H all v. Norton , 266 F.3d 969, 976 (9th Cir. 2001).

McGee, however, has not p lausibly alleged that her

consum ption of Pop Secret substantially increased her risk o f disease. She alleges that “consum ing artificial trans fat in a ny quantity, including the quantity she actually consum ed,

. . . substantially increases the risk of heart disease, diabetes,
cancer, and d eath.” Com p l. ¶ 90. Th e studies cited in the

com plaint, however, do not support this contention. While McGee alleges that she c o n sumed about 0.2 gram s o f artificial trans fa t a day—nearly half a pound o ver several years—the studies she relies on associate serious health risks with g r e a ter levels of consum ption. A 2006 article that the

com plaint cites six tim es, for exam ple, describes the adverse h ea lth effects associated with consum ing 2 to 7 gra ms of artificial trans fat pe r d ay (m ore than 10 tim es the quantity McGee consum ed) and suggests that consum ing less than 1 g ram of artificial trans fat per day (twice McGee ’s

consum ption) “m ay be necessary to av o id adverse effects.” Dari us h Mozaffarian et al., Trans Fatty Acids and Cardiovascular Disease
, 354 Ne w En g. J. Med. 1601, 1609 (2006). Thus, although the com pl a int alleges that there are serious health risks associated with the consum p t i o n o f artificial trans fat, even in sm all quantities, we are not persuaded that McGee has plausibly alleged that her lim itedM C G E E V

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consum ption o f Po p Secret placed her at substantial risk o f disease. Accordingly, McGee has not suffi c i e ntly alleged injury in fact based on her risk of future physical injury.

IV. CONCLUSION

We h o ld that McGee has not plausibly and sufficien tl y alleged an injury in fact. The district court therefore properly dism issed this action for lack of Article III standing. The judgm ent of the district court is

AFFIRMED.