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A black and white photograph of butter, oil, and margarine product, including Crisco, Spry, Good Luck Margarine, Seneca Corn Oil, Wesson Oil, and Morrell lard.
Butter, also margarine, lard, shortenings, cooking and salad oils... Palmer, Alfred T., photographer. March 1943. Library of Congress, Prints and Photographs Division.

Ninth Circuit Dismisses Class Action Claims on I Can’t Believe It’s Not Butter! Spray

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In an April 18, 2023, opinion, the Ninth Circuit Court of Appeals dismissed a class action lawsuit alleging that nutrient content claims for “I Can’t Believe It’s Not Butter! Spray” (“Butter! Spray”) are misleading. The plaintiffs in this case were California consumers who alleged that the “product’s label makes misrepresentations about fat and calorie content based on artificially low serving sizes.” (Op. at 5.)

Black and white image of a woman in a white dress and hat standing behind four large slabs of butter, approximately 1 foot wide, two feet long, and six inches thick.
Preparing butter for cutting and packing. Land O’Lakes plant, Chicago, Illinois. Vachon, John, photographer. June 1941. Library of Congress, Prints and Photographs Division.

The opinion includes a brief background of the product and the underlying claims. “Launched in 1994, Butter! Spray is a ‘butter-flavored vegetable oil’ dispensed in ‘pump-action squire bottles’ with a ‘spray mechanism.'” (Op. at 6.) The product’s label states that it has 0 calories and 0 grams of fat per serving. Additionally, its nutrition label outlines serving sizes for different uses, including “cooking spray” and “topping.” The serving size for “cooking spray” lists “1 spray,” while the “topping” label serving size is “5 sprays.” (Op. at 6.) The plaintiffs’ claims were based on California state consumer protection laws. Among other arguments, the plaintiffs claimed that these labeling statements were misleading because “an entire 12-ounce bottle of Butter! Spray contains 1160 calories and 124 grams of fat,” and the recommended serving sizes were “artificially small.” (Op. at 7.)  A federal district court had previously dismissed the case, which the plaintiffs partially appealed to the Ninth Circuit.

In a 2-1 decision, a Ninth Circuit panel disagreed with the plaintiffs and affirmed the dismissal. The Ninth Circuit’s holding focused on the Food, Drug, and Cosmetic Act (FDCA), and the preemptive effect that its rules have on food product labeling. Federal preemption can be a complex topic spanning constitutional and administrative law, but the process has been summarized as, “[w]hen state law and federal law conflict, federal law displaces, or preempts, state law,” under the U.S. Constitution’s Supremacy Clause. In this case, the majority held that the FDCA, as amended by the Nutrition Labeling and Education Act, created uniform rules for labeling food products, and prohibited states from creating requirements inconsistent with the federal standards.

A screen capture of the nutrition labeling requirements for fats and oils, as found in the Code of Federal Regulations. The relevant text provides that butter will have a serving size of 1 tbsp or 15 mL, while "spray types" will have a serving size of .25 grams.
Screen capture of the table listing label statements by food type, found in 21 CFR 101.12 (2022).

The opinion outlines the federal regulations that Butter! Spray was required to adhere to, which are found in FDA standards for serving sizes. A table in this regulation outlines standard serving sizes for a huge swath of food products. Relevant here are standard serving sizes for fats and oils labeled “butter, margarine, oil, shortening,” (1 tablespoon) and “spray types” (0.25 grams). The court noted that if it determined that the product would be properly classified as “butter, margarine, oil, shortening,” the “serving size on the Butter! Spray nutritional panel [would be] incorrect, as [would] the fat and calorie representations.” (Op. at 14.)

In reaching its conclusion, the Ninth Circuit noted, “[t]o decide the preemption question, we thus must resolve, based on the allegations in the complaint, whether, as a matter of law, I Can’t Believe It’s Not Butter! Spray should be classified as a butter/oil or a spray. As matter of legal classification, it is a spray.” (Op. at 14.) The Court then noted all the ways in which the product can be described as a “spray,” including its pump-action mechanism and the fact that the product was “dispensed in the form of droplets.” (Op. at 14-18.) The Court also emphasized that if a serving size has fewer than five calories, as the product here does, under FDA rules the “calorie content per serving ‘may be expressed as zero.'” (Op. at 10 (quoting 21 C.F.R. 101.9(c)(1)). Similarly, FDA rules require that products with under 0.5 grams of fat per serving must be labeled as having no fat (21 C.F.R. 101.9(c)(2)).

The dissent disagreed with the majority’s analysis, and asserted that the manufacturer should be required to prove that the product qualifies as a “spray” under FDA regulations. (Op. at 22-25.) In summary, the dissent concluded,

In context of the clear language of the statute and regulations, at trial the fact finder could properly find that I Can’t Believe It’s Not Butter Spray is categorized in the “butter, margarine, oil, [and] shortening” category rather than as a “spray.” Such a finding would well square with the reality that even though squirted from a bottle, the product contains the expected calories rather than zero calories.

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