"plant butter with almond oil" plausibly implies significant amount of almond oil

Reyes v. Upfield US Inc., --- F.Supp.3d ----, 2023 WL 6276685, No. 22-CV-6722 (KMK) (S.D.N.Y. Sept. 26, 2023)

Reyes alleged that the labeling on some of Country Crock’s plant butter was deceptive in violation of §§ 349 and 350 of the New York General Business Law; common law breach of express warranty; common law fraud; and common law unjust enrichment. The first claim survived, with some sharp words from the judge on the common-law claims.

Country Crock sells a vegetable oil spread described as a plant butter “made with almond oil” or “with almond oil.” The label highlights the terms “Plant Butter,” “Dairy Free,” “79% Plant-Based Oil Spread,” and a description that the product is made “With Almond Oil.” The label also has pictures of almonds, an almond flower, and almond leaves.

image of product with almonds on label

Reyes alleged that consumers would, from this, expect a significant, non-de minimis amount of almond oil, in relative and absolute amounts to all oils used, but in fact the ingredient list showed a “negligible” amount of almond oil, both in relative and absolute amounts. Instead, the oil came from, in order, palm fruit, palm kernel, canola and almond oil.

Reyes alleged both consumer-oriented conduct and injury (paying a premium price). Moreover, the label was plausibly misleading. Upfield argued that “the Product’s front label makes no representation regarding the relative or absolute amount of almond oil in the Product,” and thus that “including the ingredient list[ ] clearly precludes the possibility of deception,” along with contesting the description of the almond oil as de minimis.

At this stage, it was plausible that consumers would expect the predominant oil to be almond oil, under Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018), which found that it was plausible that crackers labeled as “WHOLE GRAIN” and “MADE WITH WHOLE GRAIN” would mislead consumers into thinking that the grain content was predominantly whole grain.  As another court said:

While reasonable consumers may not have a well-defined understanding of what “plant butter” is, they are likely to understand that a “plant butter” spread is made from plant-based ingredients. As in Mantikas, they will likely look to emphasized assertions on the packaging to discern what these ingredients are. It is therefore plausible that the representation that the plant butter is “Made With Olive Oil” could lead a reasonable consumer to conclude that the major plant-based ingredient was olive oil. In this context, the disclosure on the front of the packaging that the Product is a “79% vegetable oil spread” would not necessarily contradict the initial impression ….

This wasn’t a case where the touted ingredient was obviously not the predominant ingredient, as with Kennedy v. Mondelez Global LLC, No. 19-CV-302, 2020 WL 4006197 (E.D.N.Y. July 10, 2020) (no reasonable consumer would assume that “made with real honey” on a graham cracker label meant it was predominantly honey and thus couldn’t assume it was the predominant sweetener). Nor would the back-of-package ingredient disclosures necessarily dispel the misleading front. And as for whether it was plausible to think that a spread could be mostly olive oil, “a reasonable consumer is not expected to have an intimate understanding of the chemical properties of [almond oil] vis-à-vis the other vegetable oils or a sense of what ratio of oils is feasible.”

Nor was there FDCA preemption; Reyes wasn’t challenging nutrient claims.

Breach of express warranty failed for want of the required pre-suit notice. On this and the following, the court noted that plaintiff’s counsel had made and lost similar claims multiple times in this court, and mentioned Rule 11. Fraud also failed because of failure to allege scienter; it wasn’t enough to point to the profit motive. And unjust enrichment was duplicative.