Judge Allows Parkay Spray Class Action Lawsuit to Continue

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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.

A California federal judge will allow a class action lawsuit against ConAgra Foods Inc. to proceed, finding that the claims are not preempted by federal law.

U.S. District Judge Jon S. Tigar found that plaintiff Erin Allen had presented sufficient evidence to show that ConAgra circumvented U.S. Food & Drug Administration (FDA) labeling rules by claiming Parkay Spray was a “spray type” fat and oil product instead of a subclass for butter, shortening, oil and margarine.

According to the Parkay Spray class action lawsuit, the misclassification allowed ConAgra to use tiny serving size when it calculated the nutritional information for one serving of Parkay. As a result, the artificially small serving size yielded a fat and calorie content that was low enough to be rounded to zero, enabling the company to advertise Parkay as a fat- and calorie-free product, even though it is not.

Allen launched the class action lawsuit in March, claiming that ConAgra knew or should have known that Parkay Spray’s label would mislead customers. She also alleged violations of the federal Food, Drug and Cosmetic Act (FDCA) and consumer protection laws of 49 states and the District of Columbia. ConAgra moved to dismiss the class action lawsuit, claiming that it was preempted by the FDCA.

Judge Tigar found that the Parkay class action lawsuit only took issue with ConAgra’s compliance with the FDA regulations that fell under the FDCA and were not preempted by federal law. “Because Plaintiff’s state law claims do not threaten to impose requirements on ConAgra that differ from those required by FDA regulations, ConAgra’s motion to dismiss on the basis of preemption is hereby denied,” Judge Tigar wrote.

He rejected ConAgra’s argument that Allen was suing to enforce provisions of the FDCA, which does not provide a private right of action, because Allen was injured by ConAgra’s FDCA violations.

According to the class action lawsuit, ConAgra marketed Parkay Spray as having the “buttery taste of Parkay.” FDA regulations require that the serving size “is an amount customarily consumed and which is expressed in a common household measure that is appropriate to the food.” Judge Tigar found that Allen adequately argued that Parkay Spray is intended for use as butter and that consumers typically use it that way.

“Based solely on the FDCA and FDA regulations, plaintiff adequately alleges that imitation butter, whether it is liquid or solid, and whether it is packaged in a spray pump, a squeeze bottle or something else, is subject to the serving size requirements of the fat and oil product category ‘butter, margarine, oil, shortening,” Judge Tigar said. “The court concludes that plaintiff has adequately alleged that the serving size listed on Parkay Spray bottles is the wrong serving size.”

Allen is represented by Steve W. Berman and Shana E. Scarlett of Hagens Berman Sobol Shapiro LLP and Ureka E. Idstrom of The Eureka Law Firm.

The Parkay Spray Class Action Lawsuit is Allen 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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