"Pure Irish Butter" plausibly misleads as to absence of dangerous chemicals

Winans v. Ornua Foods North America Inc., --- F.Supp.3d ----, 2024 WL 1741079, No. 2:23-cv-01198-FB-RML (E.D.N.Y. Apr. 23, 2024)

Plaintiffs alleged that the presence of per- and polyfluoralkyl substances (“PFAS”) in Kerrygold butter made the use of “pure Irish butter” into false advertising under NY law. The court declined to dismiss the complaint. Additional background: “[I]n early 2023, in response to a New York state law banning PFAS in food packaging, Ornua issued a recall of the Kerrygold Butter Products because the packaging contained PFAS. Exposure to PFAS — a category of synthetic, artificial chemicals often called ‘forever chemicals’ — is linked to fertility issues, developmental delays, increased risk of cancer, increased cholesterol and obesity, and reduced immune response and can be dangerous even at low levels.”

Prominent "Pure Irish Butter" on Kerrygold packaging

First, Ornua argued that Winans failed to plausibly allege the presence of PFAS, depriving her of standing. The court disagreed:

The parties do not appear to dispute that Winans purchased Kerrygold Butter products with packaging that contained PFAS. The question is thus whether Winans has alleged that the butter itself contained PFAS. To make that link, Winans posits the migration theory, whereby the PFAS migrated from the packaging to the butter, which she supports by citing several studies establishing other instances of PFAS migrating from packaging to food products.

That was plausible. Lab tests were not required at this stage. “Certainly, a testing requirement might be sensible in cases where there is no reason to otherwise believe that a product contained PFAS. But here, where Ornua publicly removed its products because the packaging contained PFAS, Winans’s allegations suffice.”

Misrepresentation: Ornua argued that “pure” modified only “Irish,” not “butter,” so it meant “butter purely from Ireland,” rather than “pure butter from Ireland.” Deceptiveness is generally a fact question, and it was plausible that a reasonable consumer reading the label would conclude that the adjective “pure” modifies the noun, “butter.” Indeed, Ornua’s reasoning was less plausible; the court noted that “pure Irish butter,” rather than “Irish pure butter” obeyed “the standard ordering of adjectives in English.”

Omission-based claims also survived; Winans plausibly alleged that Ornua knew of the problem. She alleged that “(1) Ornua exclusively controlled the contents of the Kerrygold packaging that contained PFAS; and (2) Ornua recalled its Kerrygold Products in response to a New York law banning PFAS from packaging, which suggests that Ornua was at the very least aware that its packaging did contain the chemical. It seems at least plausible that Ornua may have suspected that the PFAS could migrate from the packaging to the product.”

Nor did federal law preempt the omission-based claims. FDA regulations exempt from disclosure requirements “[i]ncidental additives that are present in a food at insignificant levels.” These “incidental additives” include “[s]ubstances migrating to food from equipment or packaging or otherwise affecting food.” But whether the levels were insignificant was a factual question.  

However, Winans lacked standing to seek injunctive relief.