Monday, September 30, 2013

No reasonable person could believe it's just butter

Simpson v. Kroger Corp., No. B242405, 2013 WL 5347881 (Cal. Ct. App. Sept. 25, 2013)

Simpson sued Kroger and Challenge Dairy for selling allegedly mislabeled products combining butter with canola oil or olive oil.  Simpson argued that the products couldn’t lawfully be labeled “spreadable butter with” the other oils, at least without making the other oils more prominent.  The court found that California’s butter labeling law wasn’t identical to federal labeling requirements and was therefore preempted.  (As it turns out, Congress barred the FDA from establishing a standard of identity for butter, and specified how it wanted butter defined—once again, the history of the regulatory state could be told through the lens of dairy regulation.  There’s no standard of identity for butter combined with canola or olive oil, leaving this product governed by the general regulations that require foods to bear their common names/the common names of their ingredients.)  The court rejected Simpson’s argument that a state law that was “substantially” identical to federal law wasn’t preempted.  Only identical laws survive preemption.

Though Simpson’s Sherman Law claims weren’t preempted, that didn’t help her, because as a matter of law no reasonable consumer would’ve been misled by the labels.

The court included various images of the products at issue, e.g.:

Where “butter” is used on the label, the other oils are also on the panel, albeit in smaller type.  The basic FDA rule is that “[t]he common or usual name of a food, which may be a coined term, shall accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food or its characterizing properties or ingredients.”  Defendants argued that these labels complied, and Simpson responded that “butter” was overly prominent on the packages.  The court disagreed: The top and side labels clearly identified any reasonable consumer of the contents.  “No reasonable person could purchase these products believing that they had purchased a product containing only butter.”

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