Monday, November 08, 2021

I can’t believe it’s not butter—because the label said it was all butter

Boswell v. Bimbo Bakeries USA, Inc., 2021 WL 5144552, No. 20-CV-8923 (JMF) (S.D.N.Y. Nov. 4, 2021)

Boswell sued on the theory that the packaging on Entenmann’s “All Butter Loaf Cake” was misleading because the cake contains not only butter, but also soybean oil and artificial flavors. However, “All Butter” was ambiguous in context—it was obvious that the product was not a stick of butter, but a cake—and it wasn’t enough to allege that reasonable consumers would expect from the label that there wouldn’t be non-butter shortening. Judge Furman relied on In re 100% Grated Parmesan Cheese Mktng. & Sales Pracs. Litig., 275 F. Supp. 3d 910 (N.D. Ill. 2017), without noting that it had been rejected by the Seventh Circuit in Bell v. Publix Super Mkts., 982 F.3d 468 (7th Cir. 2020) (albeit with some Seventh Circuit procedural niceties that may be why the earlier decision is not red-flagged in Westlaw, which is probably Westlaw’s mistake; Bell resolves the same issue—whether “100% Grated Parmesan” is plausibly misleading if the product contains additional additives; it is an appeal from a subsequent 2019 decision in the same MDL).

Judge Furman used 100% Grated Parmesan to state and illustrate the rule that labels are not misleading if the prominent term is ambiguous and the ambiguity is resolved by reference to the list of ingredients or a Nutrition Facts panel, whereas “packaging with a prominent label that is unambiguous and misleading” is actionable even if the ingredients list contradicts the unambiguous label. When you’re deciding that a term is ambiguous, it might be better to rely on a case where there wasn’t judicial disagreement over that very question.

You might have thought that Mantikas, an actual Second Circuit case, resolved a label on all fours when it found that the labeling on “whole grain” Cheez-It crackers could be false or misleading because, while the boxes “contained the words ‘WHOLE GRAIN’ [or ‘MADE WITH WHOLE GRAIN’] in large print in the center of the front panel,” the ingredients list and Nutrition Facts panel revealed that the “grain content” of the crackers “was not predominantly whole grain, but rather enriched white flour.” This stated a valid claim under New York law because “the statements ‘WHOLE GRAIN’ and ‘MADE WITH WHOLE GRAIN’ ... falsely imply that the grain content is entirely or at least predominantly whole grain.” Those statements were unambiguous, so the label couldn’t correct them. Seems kind of analogous to All Butter/shortening content to me.

But no, this case “falls on the 100% Grated Parmesan Cheese side of the line” [again, awkward given the reversal!]. Taken literally, it suggests that the product is entirely butter, but no one would take it literally because it modifies “Loaf Cake” (which by the way means that it does not literally suggest that the product is butter, because that’s not how modifiers work). “[A]ny reasonable consumer would be aware that the product is, notwithstanding the label ‘All Butter,’ likely to contain other ingredients commonly found in cake, such as flour, sugar, milk, and eggs.” It was ambiguous because Boswell herself provided competing definitions—first that consumers would expect all the shortening would be butter, and then that “no butter alternatives or substitutes will be used in the Product where butter is capable of being used.” (I need a baker to tell me whether those actually are different things.) Anyway, “All Butter” could merely be “description of flavor, denoting that the product tastes only of butter and does not include a second flavor, such as almond, chocolate, or cinnamon.” Because of the ambiguity, reasonable consumers here would not be “lulled into a false sense of security” by the bold lettering on the product’s package

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