October 3, 2022

Volume XII, Number 276

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September 30, 2022

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“Made with Real Butter” Claim Challenged

  • class-action lawsuit filed by Spencer Sheehan on September 18, 2022, alleges that an apple pie product advertised as “made with real butter” is deceptively advertised because its primary shortening ingredient is palm oil, which the complaint argues is contrary to consumer expectations and results in an inferior product. As disclosed on the ingredient list, the second ingredient is “shortening butter blend,” which consists of palm oil and butter (in that order of predominance), and palm oil and soybean oil are the third and fifth most predominant ingredients, respectively.

  • Citing to 21 CFR 101.4(b)(14), the complaint argues that “shortening butter blend” is an inappropriate common name because it improperly combines animal and vegetable fats into a single ingredient name and that its sub-ingredients (palm oil and butter) should be listed individually in order of predominance. Plaintiff states that the product contains more soybean oil, water, and salt than butter, and that if butter were listed as an individual ingredient, it would be “closer to the least predominant ingredient.” It is not clear how Plaintiff can make this claim since ingredient lists disclose only relative amounts of ingredients. Furthermore, even if Plaintiff’s interpretation of Section 101.4(b)(14) was correct (and it is not clear that it is), a technical violation of an FDA labeling rule at best provides only some evidence of consumer deception.

  • The complaint is similar to other complaints filed by Spencer Sheehan relating to butter and vegetable oils that have been dismissed on the grounds that the products in question did not make representations that butter was the exclusive ingredient and the ingredient lists accurately disclosed the products’ contents. See BEF Foods Class Action (dismissing lawsuit and holding that “made with real butter” was not misleading where mashed potato product at issue also contained vegetable oils); see also Pepperidge Farm Class Actions (dismissing lawsuits and holding that “Golden Butter” crackers were not deceptively labeled where they contained vegetable oils as a secondary shortener). Nevertheless, we expect that Spencer Sheehan will try to distinguish the cited cases on the grounds that they involved products where butter was present in a greater amount than the challenged vegetable oils. In contrast, vegetable oils are more predominant than butter in the product at issue.

© 2022 Keller and Heckman LLPNational Law Review, Volume XII, Number 263
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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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