I can reasonably believe it's butter: claims against "Butter No-Stick Spray" without any butter survive

Strow v. B&G Foods, Inc., No. 21-cv-5104 (N.D. Ill. Sept. 30, 2022)

Very 7^th-Circuit style opinion refusing to dismiss false advertising claims against a “Butter No-Stick Spray” with no butter in it. Lots of encomiums to butter (many based on the complaint)—short version: butter is not the same thing as oil in ways that are material to consumers both for taste and cooking-functionality reasons. Also, the FDA considers false and misleading any product labeled “Butter” or using the word “butter” in conjunction with its name “unless all of the shortening ingredient is butter.”

Butter Non-Stick Spray

The court noted that “Butter” was the most prominent word on the can, and that it was used as a noun, which “communicates that it is butter, not that it has a butter-like attribute.” The image also shows a pat of butter on the pancake, and the can was yellow, “shaped kind of like a stick of butter. It doesn’t take too much imagination to think that the good people at Crisco have somehow figured out how to put a nozzle on a stick of butter itself.”

The front label also says, in “hazy” font, “Natural & Artificial Flavor,” as well as “0g Trans Fat,” “For Fat Free Cooking,” “0g Sat Fat,” and “0 Calories.” The court noted that “anyone who spots that text should have a moment of pause” because those aren’t butter attributes. Maybe consumers could think that “Crisco had created a miracle: fat-free, calorie-free butter. But that’s an issue for a later day.” The back label discloses the ingredients: oils etc. but no butter. Indeed, the back label touts “Buttery Flavor For Your Food Without The Butter.”

Buttery Flavor without the Butter caption over calorie/serving comparisons to Butter/Margarine and Oil

ingredient list featuring no butter

B&G’s other no-stick sprays, like olive oil spray, which “actually contains its namesake ingredient.” Competitor products prominently feature “butter flavored” identifications.

Although B&G might prevail later, it was not unreasonable to read the word “Butter” to mean butter. “If B&G didn’t want consumers to think that the can contained butter, one wonders why it said ‘Butter,’ front and center.”

B&G argued that the properties of butter were incompatible with a room-temperature liquid spray. But butter does exist in liquid (melted) form. “At the very least, it is not so far outside the realm of possibility that it fails to state a claim…. Reasonable consumers are not chemists. The law does not expect consumers to be well-versed in butter’s thermodynamic properties.” They are not required to stop and think about whether butter can be liquid at room temperature (the parties disputed whether this could happen with appropriate additives). “It is not as if the spray can told consumers that it could help them fly.” Only “unreasonable and fanciful” interpretations should be kicked out at the motion to dismiss stage, and this wasn’t.

What about the back of the can, with its “without the butter,” ingredient list, and comparisons to the calories in butter and oil? “[T]he Seventh Circuit has limited the ability of truthful information on a product’s back label to immunize deceptive advertising contained on the product’s front label.” As it ruled in the “100% Grated Parmesan Cheese” case, “the reasonable consumer standard does not presume, at least as a matter of law, that reasonable consumers will test prominent front-label claims by examining the fine print on the back label.” Since “[c]onsumers don’t study grocery labels like books in a library,” they could plausibly rely on the largest word on the can and the image of a melting pat of butter atop pancakes in a skillet. “A consumer pushing his cart down the aisle confronts only this imagery and labeling during the few seconds spent deciding whether to purchase the product.”

What about “Natural & Artificial Flavor” on the front of the can? B&G argued that it had to mean that the spray was only butter-flavored. But the court would “not impose on average consumers an obligation to question the labels they see and to parse them as lawyers might for ambiguities, especially in the seconds usually spent picking a low-cost product.” Anyway, it was plausible that a consumer who sees the word “natural” next to “butter” would expect to find natural butter in the product. And “Natural & Artificial Flavor” next to “Butter” could mean different things to different consumers. “Maybe it means that the can contains butter, and some artificial flavors.” B&G could not change the plain meaning of “butter” to “buttery” by argument.