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NY Dismisses Another “Deceptive” Butter Case

  • On November 9, the U.S. District Court for the Southern District of New York dismissed a putative class action against Pepperidge Farm Inc. The plaintiff alleged that the cracker product name “Golden Butter” was deceptive because the crackers contained butter, which was the second most predominant ingredient in the ingredient list after flour, and also included non-de minimis amounts of vegetable oils. Aside from the “Golden Butter” name, the plaintiff did not allege that the labeling made other claims about the crackers or their ingredients. U.S. District Judge P. Kevin Castel tossed the suit without providing leave for the plaintiff to amend.

  • As per the complaint, the plaintiff acknowledged that the product “contains butter,” but argued that consumers are misled into thinking they are buying “a cracker which is all or predominantly made with butter” when the crackers also contained vegetable oils. The plaintiff argued that consumers prefer butter-based products over those containing vegetable oils because butter tastes better, is rich in calcium and Vitamins A and D, and does not contain trans fats. According to the complaint, marketing the crackers as “Golden Butter” “misrepresents the product through affirmative misstatements, half-truths and omissions, and deceives, misleads and defrauds consumers.”

  • In his opinion, Judge Castel found that “the packaging accurately indicated that the product contained butter, and the ingredients list confirmed that butter predominated over other oils and fats” and that “a reasonable consumer could believe the phrase ‘Golden Butter’ refers to the product’s flavor and was not a representation about the ingredient proportions.” The judge further went on to note that the complaint did not plausibly allege why a reasonable consumer would believe that the use of butter precluded secondary usage of vegetable oils.

  • As our readers know, this was the second butter-related suit in a week to be dismissed in the Southern District of New York, with the first being a putative class action against Bimbo Bakeries USA Inc. These decisions demonstrate that deceptive flavor labeling cases are not likely to survive a motion to dismiss, at least in the Southern District of New York, unless the label or claims are unambiguous or clearly misleading.

© 2022 Keller and Heckman LLPNational Law Review, Volume XI, Number 314
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About this Author

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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