Post Moves to Dismiss Simply Potatoes Margarine Class Action Lawsuit

Post Holdings Inc. moves to dismiss a class action lawsuit claiming that the “made with real butter” labeling on its “Simply Potatoes” products is deceptive.

The product is made with both butter and margarine, and the class action lawsuit claims that to only advertise the butter constitutes false advertising.

In its retort to the Simply Potatoes class action lawsuit, Post claims that no reasonable consumer would be misled by the product’s advertising, stating that there is no expectation that a product’s advertising would detail every ingredient in the product.

In its attempt to have the Simply Potatoes false advertising class action lawsuit thrown out, the company cites a number of “virtually identical” class action lawsuits dismissed by federal courts.

In November 2017, plaintiff Josh Berger filed the Post mashed potatoes class action lawsuit, saying that Post’s practice of advertising its Simply Potatoes product as containing only simple, wholesome ingredients, while actually containing margarine, a synthetic ingredient, constitutes false advertising.

His argument states that Post centers its advertisement of the product on its inclusion of butter as an ingredient. He claims that in recent years, consumers have developed a notable preference for natural ingredients over synthetic ones, and as part of this trend, have developed a preference for butter over its synthetic counterpart, margarine.

The Simply Potatoes class action lawsuits states that “where a product is composed of fewer, simpler ingredients, the final consumable product will be less processed and contain fewer artificial and synthetic ingredients and preservatives that consumers seek to avoid.”

The Post Simply Potatoes class action lawsuit asserts that the product’s advertising capitalizes on consumers’ preference for natural foods without delivering on that promise in their ingredients. The product allegedly advertised with phrases like “real ingredients like milk and butter,” and “made with real milk and butter.”

Post fired back at the claims, saying that these advertising statements are not deceptive at all. The company claims that Berger’s allegation has no legal standing. The company argues that “according to the FDA, ‘made with real butter’ does not suggest butter is present in any certain amount, nor does it imply that some other ingredient — like margarine in this case — is absent.”

Post goes on to argue that no reasonable consumer would read the Simply Potatoes label and infer that the product contained only potatoes, butter, and milk. Post also claims that there is no legal standing to Berger’s claim that the words “simply” and “fresh” in the product’s advertising suggest that the advertised ingredients are the only ingredients in the product.

According to Post, “a reasonable consumer acting reasonably under the circumstances evaluates words like ‘simply’ — in this case, a trademarked brand that has existed for over 30 years — in the context of similar products, and does not compare refrigerated, prepared foods to home recipes.” In its argument, the company points to precedent set by numerous cases in which claims similar to Berger’s were dismissed.

Berger is represented by Joshua Levin-Epstein of Levin-Epstein & Associates PC.

The Post Simply Potatoes False Advertising Class Action Lawsuit is Josh Berger v. MFI Holding Corporation, et al., Case No. 2:17-cv-06728-JFB-ARL, in the U.S. District Court for the Eastern District of New York.