In a decision that boosts defendants’ chances of defeating mislabeling claims at the pleading stage, a Ninth Circuit panel held that that the Food Drug and Cosmetic Act (“FDCA”) expressly preempted plaintiffs’ claims.  See Pardini et al. v. Unilever United States, Inc., No. 21-16806 (9th Cir. Apr. 18, 2023). 

Plaintiffs filed a putative class action against Unilever in the Northern District of California, contending that the label on “I Can’t Believe It’s Not Butter! Spray” misrepresents the fat and calorie content of the spray by reporting artificially small serving sizes.  The plaintiffs claimed that the product—a butter-flavored vegetable oil packaged in a spray bottle dispenser, and containing 1160 calories and 124 grams of fat per container—should not have been labeled as zero-calorie and zero-fat.  They asserted that the nutritional information should have been reported using the larger serving size for “butter, margarine, oil, [or] shortening” products in the Food and Drug Administration (“FDA”) regulations, rather than the smaller serving size for “spray type” fats and oils.

The district court dismissed the claims with prejudice, finding that because plaintiffs had failed to plausibly allege that the product was not a “spray type” fat or oil as set forth in the FDA’s regulations, and because the labeling complied with the regulations for “spray types,” their claims were preempted by the FDCA.  On appeal, plaintiffs argued that the product should be treated as “butter” under the regulations because it is marketed as a “butter substitute,” and that the nutritional information was misleading because consumers sometimes use more than the single-spray serving size of the product.

The Ninth Circuit disagreed, finding that the product was properly characterized as a “spray,” not a “butter,” under FDA’s nutrition labeling rules, and therefore Unilever was required to report nutritional values for the smaller “spray” serving size.  The zero-calorie and zero-fat representations were proper under FDA regulations permitting products to be labeled that way if they contain fewer than 5 calories or 0.5 grams of fat per serving. 

The panel noted that it would be implausible to classify the product as “butter” because it is a liquid, and because a consumer would have to spray the dispenser bottle 40 times to generate the one-tablespoon serving size that applies to “butter.”  The panel also determined that plaintiffs’ argument that the proper serving size is multiple sprays was expressly preempted, because plaintiffs’ position would create a food labeling requirement different from the requirements set forth by FDA:  “In view of the FDCA’s express preemption provision, if plaintiffs believe that Butter! Spray should have a higher customary usage reference amount, the proper forum in which to air that grievance is the FDA (or Congress), not the courts.”  The panel rejected plaintiffs’ claims regarding the reported fat and calorie content for the same reason. 

This ruling from the Ninth Circuit may prove useful to other companies facing similar labeling challenges from consumers, if they can frame the plaintiffs’ claims as a challenge to FDA-approved labels.

Photo of Alice Phillips Alice Phillips

Alice Phillips is a litigation associate in the firm’s Los Angeles office. She represents clients in all stages of complex civil litigation, including at trial.

Previously, Alice clerked for Judge John M. Walker, Jr., on the U.S. Court of Appeals for the Second…

Alice Phillips is a litigation associate in the firm’s Los Angeles office. She represents clients in all stages of complex civil litigation, including at trial.

Previously, Alice clerked for Judge John M. Walker, Jr., on the U.S. Court of Appeals for the Second Circuit and Judge Carol Bagley Amon on the U.S. District Court for the Eastern District of New York.