Sheehan & Associates, one of the most active Plaintiff’s firms in the food litigation space, has continued its pattern of filing aggressive lawsuits based on consumer deception claims that are untethered to any violation of FDA’s food labeling regulations. The firm, on behalf of proposed classes of consumers, alleged in a pair of complaints filed last month that consumers would not expect a “butter cracker” or a pudding “made with real milk” to contain vegetable oils.

One of the lawsuits, filed against Pepperidge Farm, Inc., alleges that “Golden Butter” crackers are misleadingly named because they contain vegetable oils (canola, sunflower, and/or soybean) when consumers would expect that a butter product is “all or predominantly made with butter.” The complaint discounts the possibility that a consumer would instead interpret a “butter cracker” to mean a “cracker made with butter,” but provides no evidence in support of this assertion. Further, it blithely claims (or at least strongly suggests) without support that consumers prefer butter to vegetable oils because butter is rich in nutrients like calcium, and Vitamin A and D, while vegetable oils are “highly processed artificial substitutes” and may contain trans-fat. We note that the “Golden Butter” crackers do not in fact contain trans-fat and that vegetable oils are generally considered to be healthier alternatives to butter, which is high in saturated fat. See e.g. USDA Dietary Guidelines 2020-25 at 102 (“Cooking with oils higher in polyunsaturated and monounsaturated fat (e.g., canola, corn, olive, peanut, safflower, soybean, and sunflower) instead of butter also can reduce intakes of saturated fat.”)

The second of the lawsuits was filed against Conagra Brands, Inc. and alleges that “Snack Pack Pudding Chocolate Fudge,” which is represented as “made with real milk,” is deceptively labeled because it contains nonfat milk and palm oil, which allegedly substitutes for the milk fat in whole milk. Plaintiff asserts that consumers will interpret “real milk” to mean “whole milk” in the “context of a pudding.” In support of this, Plaintiff offers only that whole milk makes pudding “thicker and taste better,” at least according to Cook’s Illustrated, although one wonders if Plaintiff is suggesting that the reasonable consumer standard is one that requires expertise in the making of pudding. Additionally, Plaintiff dismisses the “made with nonfat milk” disclosure that accompanies the “made with real milk” representation because it is allegedly too small for consumers to appreciate.

Without any allegation of a violation of FDA’s labeling guidelines or any other evidence suggesting that consumers would be deceived by the addition of oils, it appears unlikely that the complaints have pled enough to survive a motion to dismiss.