Judge Trims I Can’t Believe It’s Not Butter Spray Class Action Lawsuit

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Plaintiffs in a class action lawsuit accusing Unilever of falsely advertising that its “I Can’t Believe It’s Not Butter” spray contains zero fat and calories will have to go back to the drawing board after a federal judge last week shot down most of their claims.

Plaintiffs Kym Pardini and Carrie Wood allege in the class action lawsuit that labeling and advertising statements that claim “I Can’t Believe It’s Not Butter” contains “0 calories” and “0 fat” are blatantly untrue, which falsely represented the product to consumers.  The basis of their allegations stems from their assertion that Unilever used an artificially small serving size so that the calories and fat per serving could be rounded down to zero.

In a ruling issued Jan. 22, U.S. District Judge Samuel Conti  said that two out of the three claims by the plaintiffs are preempted by the federal Food, Drug, and Cosmetic Act (FDCA), and that the charges did not actually fit any descriptions of their alleged violations.  He did, however, state that the claims are not preempted to the extent that they are predicated on Unilever’s failure to provide a notation on the nutrition panel that certain ingredients contain fat (the “asterisk claim”).

“Plaintiffs essentially allege that because the ICBINB [spray] packaging makes a ‘zero fat’ nutrient content claim, the nutrition label must include an asterisk next to ‘soybean oil’ and ‘buttermilk’ and a notation indicating that these ingredients contain some amount of fat,” Judge Conti said.

Conti stated there is no regulation in the law regarding quantity claims only applying to products which claim to have zero fat and calories.  He said the intent behind this law was to provide consumers awareness that this product actually contained fat-composed ingredients, regardless of a fat-free label.

This is the second time Conti has trimmed claims from the ICBINB class action lawsuit. The plaintiffs tried to further their false advertising and product misrepresentation charges based on the fact that Unilever used oil products without explicitly mentioning the fact.  Conti dismissed these charges because the ingredients in question in the spray were only partial-oils, when the FDA only considers a product to have oil when the ingredient is made up almost entirely of oil.  Additionally, the FDA’s serving guidelines for spray fats or oils are actually slightly bigger than the defendant company.

“Plaintiffs never cite any authority suggesting that the FDA’s scant examples of spray-type fats and oils are exclusive. The court is not convinced that plaintiffs’ arguments prove that the FDA meant to restrict the ‘spray type’ category as far as plaintiffs claim,” Judge Conti said.

The plaintiffs will be allowed to file an amended complaint within 30 days.

The plaintiffs are represented by Steve. W. Berman, Shana E. Scarlett and Lee M. Gordon of Hagens Berman Sobol Shapiro LLP and by Ureka E. Idstrom of The Eureka Law Firm.

The I Can’t Believe It’s Not Butter Class Action Lawsuit is Pardini v. Unilever United States Inc., Case No. 3:13-cv-01675 in the United States District Court of Northern California.