On November 4, 2021, the U.S. District Court for the Southern District of New York dismissed with prejudice a putative class action against Bimbo Bakeries USA Inc.  The plaintiff alleged that “All Butter” on Entenmann’s “All Butter Loaf Cake” is deceptive because the cake contains not only butter, but also soybean oil and artificial flavors.  The judge’s memorandum starts with the notable observation, “This case is the latest in a long string of putative class actions brought by the same lawyer alleging that the packaging on a popular food item is false and misleading.”

As with the term “100% Grated Parmesan,” an ambiguity that was found to be resolved by the readily accessible ingredient statement in another recent false advertising case, which is discussed at length in the court’s opinion, the Entenmann’s case turned on whether “All Butter” in the product’s name is susceptible to only one clear interpretation and, if not, whether the ambiguous claim is cured by other information on the label.  In the Entenmann’s case, the court found that the plaintiff’s own pleadings confirm the description “All Butter” is ambiguous because the original complaint alleged a reasonable consumer would expect butter to be the only shortening ingredient whereas the first amended complaint proffered that “All Butter” tells consumers that no butter substitutes are used for any ingredient function where butter could be used.  Moreover, the court found that no reasonable consumer would take “All Butter” to mean the product contains no other ingredient because, taken literally, that would mean the product is a stick of butter.  Thus, citing the “100% Grated Parmesan” case and recent dismissals in other false advertising cases where a prominent label on food packaging is ambiguous, but the ambiguity is resolved by reference to the list of ingredients, the court granted Bimbo Bakeries’ motion to dismiss.

The Entenmann’s decision makes it increasingly clear that cases alleging a deceptive food label will not likely survive a motion to dismiss unless the label in question is either clearly unambiguous and misleading or any ambiguity is not readily resolved by reading the label.