I can’t believe it’s not butter—because the label said it was all butter

Boswell v. Bimbo Bakeries USA, Inc., 2021 WL 5144552, No. 20-CV-8923
(JMF) (S.D.N.Y. Nov. 4, 2021)

Boswell sued on the theory that the packaging on Entenmann’s
“All Butter Loaf Cake” was misleading because the cake contains not only
butter, but also soybean oil and artificial flavors. However, “All Butter” was
ambiguous in context—it was obvious that the product was not a stick of butter,
but a cake—and it wasn’t enough to allege that reasonable consumers would
expect from the label that there wouldn’t be non-butter shortening. Judge
Furman relied on In re 100% Grated Parmesan Cheese Mktng. & Sales Pracs.
Litig., 275 F. Supp. 3d 910 (N.D. Ill. 2017), without noting that it had been rejected
by the Seventh Circuit in Bell v. Publix Super Mkts., 982 F.3d 468 (7th
Cir. 2020) (albeit with some Seventh Circuit procedural niceties that may be
why the earlier decision is not red-flagged in Westlaw, which is probably
Westlaw’s mistake; Bell resolves the same issue—whether “100% Grated
Parmesan” is plausibly misleading if the product contains additional additives;
it is an appeal from a subsequent 2019 decision in the same MDL).

Judge Furman used 100% Grated Parmesan to state and illustrate
the rule that labels are not misleading if the prominent term is ambiguous and
the ambiguity is resolved by reference to the list of ingredients or a
Nutrition Facts panel, whereas “packaging with a prominent label that is
unambiguous and misleading” is actionable even if the ingredients list
contradicts the unambiguous label. When you’re deciding that a term is
ambiguous, it might be better to rely on a case where there wasn’t judicial
disagreement over that very question.

You might have thought that Mantikas, an actual
Second Circuit case, resolved a label on all fours when it found that the
labeling on “whole grain” Cheez-It crackers could be false or misleading
because, while the boxes “contained the words ‘WHOLE GRAIN’ [or ‘MADE WITH
WHOLE GRAIN’] in large print in the center of the front panel,” the ingredients
list and Nutrition Facts panel revealed that the “grain content” of the
crackers “was not predominantly whole grain, but rather enriched white flour.” This
stated a valid claim under New York law because “the statements ‘WHOLE GRAIN’
and ‘MADE WITH WHOLE GRAIN’ … falsely imply that the grain content is
entirely or at least predominantly whole grain.” Those statements were
unambiguous, so the label couldn’t correct them. Seems kind of analogous to All
Butter/shortening content to me.

But no, this case “falls on the 100% Grated Parmesan Cheese
side of the line” [again, awkward given the reversal!]. Taken literally, it
suggests that the product is entirely butter, but no one would take it
literally because it modifies “Loaf Cake” (which by the way means that it does
not literally suggest that the product is butter, because that’s not how
modifiers work). “[A]ny reasonable consumer would be aware that the product is,
notwithstanding the label ‘All Butter,’ likely to contain other ingredients
commonly found in cake, such as flour, sugar, milk, and eggs.” It was ambiguous
because Boswell herself provided competing definitions—first that consumers
would expect all the shortening would be butter, and then that “no butter
alternatives or substitutes will be used in the Product where butter is capable
of being used.” (I need a baker to tell me whether those actually are different
things.) Anyway, “All Butter” could merely be “description of flavor, denoting
that the product tastes only of butter and does not include a second flavor,
such as almond, chocolate, or cinnamon.” Because of the ambiguity, reasonable
consumers here would not be “lulled into a false sense of security” by the bold
lettering on the product’s package

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