A federal judge has ruled the makes of Crisco brand non-stick spray can’t slide out of a class action complaint alleging intentional deception regarding the amount of butter in the spray.
Charles Strow filed a deceptive advertising lawsuit against B&G Foods regarding his 2021 purchase of Crisco-brand “Butter No-Stick Spray,” which he alleged contained no actual butter. The company moved for dismissal.
“Butter is magic on a stick,” wrote U.S. District Judge Steven Seeger in an opinion issued Sept. 30. Quoting his own grandmother, Seeger continued to write “butter makes nothing worse, and makes almost everything better. Spread on a fresh baguette, melted over mashed potatoes, or baked into a flaky croissant, butter makes everything it touches turn to golden goodness. It’s the Midas of condiments. Few words in the English language are more alluring than ‘butter,’ and for good reason. Most of us have a hard time resisting anything associated with butter.
Spencer Sheehan of Sheehan & Associates, P.C.
| spencersheehan.com
"And, when it comes to promoting food, marketers want to be on Team Butter. Sex sells, but butter is a close second.”
Seeger examined the U.S. Food and Drug Administration’s desire for “a readily navigable butter landscape” as well as the congressional definition of butter — “the only food with its own statutory definition” — to explain regulations governing synthetic products like margarine and vegetable oils.
“We’re mammals — we’re hard-wired to like dairy — and butter comes from mammals,” Seeger wrote. “Substitute products rely on ingredients that are not cow-made.”
Detailing the spray can’s label, Seeger noted the biggest word is “butter” and pointed out the use of a noun instead of an adjective like “buttery.” He further said the label indicates the spray contains “natural and artificial flavor” in a smaller, hazy font. But it also notes the spray has no calories, zero grams of trans or saturated fats and is to be used “for fat free cooking” — all things that don’t apply to butter. The label on the back “touts the absence of butter” and compares it to using margarine or butter.
The Crisco olive oil spray actually contains olive oil, Seeger continued, and competing products “prominently feature ‘butter flavored’ identifications.” But Strow alleged he thought he was buying a can of sprayable butter and claims he either wouldn’t have bought the spray had he known the truth or expected to pay less.
Strow’s complaint alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as the Magnuson Moss Warranty Act. He also accused B&G Foods of tortious negligent misrepresentation, common-law fraud and unjust enrichment. The company countered by saying its label wouldn’t deceive reasonable consumers, including by arguing butter cannot be sprayed from its room-temperature solid state.
“Boiling it down, B&G thinks that it was unreasonable to read the word ‘butter’ to mean butter,” Seeger wrote. “B&G points to the nature of butter itself, the product’s back label, and the product’s front label. The court sees things differently, literally and figuratively. If B&G didn’t want consumers to think that the can contained butter, one wonders why it said ‘Butter,’ front and center.”
Seeger further said most people have melted butter in a microwave and reasonable people could believe a spray can includes butter. He also said the U.S. Seventh Circuit Court of Appeals, in a 2020 opinion in Bell v. Publix Super Markets, which concerned a product labeled as 100% grated Parmesan cheese, “limited the ability of truthful information on a product’s back label to immunize deceptive advertising contained on the product’s front label.”
By alleging the front of the can, with the word butter and a picture of a melting pat atop pancakes in a skillet, conveys the inclusion of actual butter, Strow survived a motion to dismiss, Seeger said. While he acknowledged a jury might side with B&G’s position, Seeger declined to reach that position.
“The spray can didn’t say that the contents were buttery,” Seeger wrote. “The spray can said that the thing inside was butter. The plain language reading of the text was not implausible.”
Strow is represented in the action by attorney Spencer Sheehan, of the firm of Sheehan & Associates, of Great Neck, New York.
B&G Foods is represented by attorneys Pratik K. Raj Ghosh and David Kwasniewski, of the firm of Braunhagey & Borden, of San Francisco.