JACQUELYN MCGEE, on behalf of herself and all others similarly situated v. S-LSNACKS NATIONAL, in place of DIAMOND FOODS, INC.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUELYN MCGEE, on behalf of
herself and all others similarly
situated,
Plaintiff-Appellant,
v.
S-L SNACKS NATIONAL, in place of
DIAMOND FOODS, INC.,
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 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.

MCGEE V. S-L SNACKS NATIONAL2
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 NATIONAL3
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

MCGEE V. S-L SNACKS NATIONAL4
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 NATIONAL5
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.

MCGEE V. S-L SNACKS NATIONAL6
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 NATIONAL7
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

MCGEE V. S-L SNACKS NATIONAL8
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. DISCUSSION
2
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 NATIONAL9
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).

MCGEE V. S-L SNACKS NATIONAL10
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 NATIONAL11
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

MCGEE V. S-L SNACKS NATIONAL12
“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 NATIONAL13
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.

MCGEE V. S-L SNACKS NATIONAL14
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 NATIONAL15
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.

MCGEE V. S-L SNACKS NATIONAL16
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 NATIONAL17
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

MCGEE V. S-L SNACKS NATIONAL18
“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 NATIONAL19
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.