ConAgra Must Face Parkay Spray Labeling Class Action Lawsuit

UPDATE 2: October 2020, the Parkay “0 calorie” spray class action website is now live. Click here to learn more about your rights.

UPDATE: On June 5, 2019, a federal judge said he is likely to certify state subclasses in a class action lawsuit claiming ConAgra Foods Inc. falsely advertises its Parkay Spray as being fat and calorie free.

Claims in a ConAgra cooking spray class action have remained mostly intact, with a federal judge only dismissing some allegations in the suit.

U.S. District Judge William H. Orrick chose to keep claims that the company misleads consumers about the fat and calorie content of their Parkay Spray. However, the judge dismissed asterisk claims and non-California common law claims.

“Plaintiffs’ allegations are sufficient at the pleading stage to establish a threat of repeated injury that is concrete, particularized, and redressable,” Judge Orrick wrote in his ruling.

The ConAgra cooking spray class action lawsuit was first filed in 2013 and alleged that Parkay Spray’s labeling and marketing was intended to mislead consumers about the fat and calorie content.

Since its initial filing, the class action lawsuit has survived lengthy litigation and numerous setbacks.

In September 2013, the Parkay Spray class action survived its first motion to dismiss. ConAgra had argued that plaintiff Erin Allen’s claims were preempted by the federal Food, Drug and Cosmetic Act (FDCA).

U.S. District Judge Jon S. Tigar denied this motion, finding that Allen presented sufficient evidence that ConAgra allegedly circumvented U.S. Food and Drug Administration (FDA) regulations.

In January 2015, U.S. District Judge Vince Chhabria denied Allen’s motion for Class certification. Judge Chhabria found that Allen had not established how to identify Class Members or how Class Members from other states could join the Class despite having different applicable laws.

Although he denied Allen’s motion for Class certification, Judge Chhabria allowed her to seek certification again after the conclusion of discovery.

Judge Orrick noted the case’s turbulent past in the introduction of his decision on ConAgra’s motion to dismiss, stating that “in some ways this case is only just beginning” despite being filed in 2013.

“After a denied motion to dismiss, a denied motion for class certification, a stay, the addition of seven named plaintiffs, and multiple changes to the legal landscape, this case returns to the motion to dismiss stage,” he wrote in his order.

Judge Orrick’s recent decision on the motion to dismiss in some ways followed Judge Tigar’s decision in 2013.

Judge Orrick also determined that the Parkay Spray class action was not preempted by the FDCA because the spray is in the fat and oils category not the butter category. Therefore, it is subject to different regulations.

However, while Judge Tigar dismissed Allen’s claims for unjust enrichment in 2013, Judge Orrick kept these claims alive.

He found that a Ninth Circuit decision set a precedent supporting Allen’s claims that she benefitted ConAgra by purchasing the cooking spray based on allegedly false representations.

Plaintiffs and the proposed Class are represented by Adam J. Gutride, Seth A. Safier, Anthony Patek and Kristen Simplicio of Gutride Safier LLP; and Ureka E. Idstrom of The Eureka Law Firm.

The ConAgra Parkay Spray Class Action Lawsuit is Allen, et al. v. ConAgra Foods Inc., Case No. 3:13-­cv-­01279, in the U.S. District Court for the Northern District of California.