On October 28, 2020, a plaintiff filed a proposed class action in the United States District Court Southern District of New York.  In the lawsuit, the plaintiff claims that Pepperidge Farm, Inc. (“Pepperidge Farm”) purported that its crackers are made only with “butter” as a shortening ingredient when in reality they are made with vegetable oils, which are less costly than butter.

In the lawsuit, the plaintiff argues that Pepperidge Farm intentionally designed the label to mislead, deceive, and defraud consumers because “consumers prefer butter to chemically produced ‘vegetable’ oils when baking for reasons including  taste, health, and avoidance of highly processed artificial substitutes for butter.”

By way of background, on March 1988, the U.S. Food and Drug Administration (FDA) released Compliance Policy Guide (CPG) Section 505.200 “Butter” Featured in Product Name.  The CPG  notes that the Agency will consider a name “Butter ____________” or the use of the word butter in conjunction with the name as false and misleading unless all of the shortening ingredient is butter.  Moreover, FDA stated that if the product contains both butter and shortening, but a sufficient amount of butter to give a characteristic butter flavor to the product, an appropriate name would be “butter flavored ____________.”  Lastly, if the product contains any artificial butter flavor, the product will need to be labeled in compliance with 21 CFR 101.22(i)(2).

The front of Pepperidge Farm’s cracker package includes the words “Golden Butter” but does not say “vegetable oil.”   We will continue to monitor any developments.