ConAgra May Face State Certification In Parkay Spray Lawsuit

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

A federal judge says he will likely certify state subclasses in a class action lawsuit claiming ConAgra Foods Inc. falsely advertises its Parkay Spray as being fat and calorie free.

However, U.S. District Judge William H. Orrick states that he is not likely to certify a nationwide Class of consumers.

ConAgra attempted to have the false advertising class action lawsuit dismissed, an effort which proved unsuccessful. According to Judge Orrick, neither of ConArga’s arguments defeat Class certification.

Judge Orrick says that ConAgra argued that the consumers should not be certified into a Class because state laws vary.

However, Judge Orrick argues that the “common issues are far greater than the individual ones,” and says that the issues of difference he handled by the creation of subclasses, as proposed by the customers, with minor modifications.

Judge Orrick goes on to say that ConAgra argued that the customers could not claim that they were injured by the company’s representations of their Parkay Spray product because consumers allegedly do not consume the product in large enough quantities to consume fat or calories, making the company’s advertisement that the product is fat and calorie free a true one.

Judge Orrick said that this argument should not prevent the Class from being certified and has “nothing to do with certification” because consumers argued that the injury had been done because the company inflated the price of the product through its mislabeling, not because they consumed more than the advertised calorie amount.

Judge Orrick went on to say that the amount of spray that customers consumed was determined by a flawed study which is “contradicted by ConAgra’s internal documents and testimony.”

ConAgra argued that most consumers use the spray as a cooking spray and not a topping, and as a cooking spray, people consume so little of the spray that they do not consume calories.

However, Judge Orrick points out that an expert provided by ConAgra asked consumers how they use the spray product by asking if they had used “Parkay cooking spray,” not “Parkay spray” as the product is really used, thereby influencing consumers to say that they used it as a cooking spray.

According to the judge, how consumers use the spray is a question of merit, not a Class certification question, and should therefore be determined in a trial.

This debate started with consumers’ complaint that ConAgra advertises Parkay Spray to be calorie and fat free based on serving sizes that do not comply with FDA regulations, and that the nutrient claims made by the company are unlawful.

The ConAgra spray class action lawsuit was filed six years ago, and in that time, survived a motion to dismiss and a denial of Class certification. In addition, two plaintiffs were added and twice the judge overseeing the ConAgra spray class action lawsuit was changed.

The proposed Class is 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 Spray False Advertising 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.

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