[The Court ruled that the manufacturer can keep classifying the
product as a spray, not a butter or margarine — and telling
consumers that each serving is free of calories and fats.]
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PORTSIDE CULTURE

COURT DISMISSED I CAN’T BELIEVE IT’S NOT BUTTER LAWSUIT OVER
SPRAY’S CALORIE CONTENT  
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Bob Egelko
April 18, 2023
San Francisco Chronicle
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_ The Court ruled that the manufacturer can keep classifying the
product as a spray, not a butter or margarine — and telling
consumers that each serving is free of calories and fats. _

A class-action suit accused the makers of I Can’t Believe It’s
Not Butter spray of misrepresenting the amount of calories and fats in
each serving and misleading customers. The Ninth Circuit dismissed the
suit Tuesday., Elaine Thompson/Associated Press 2017

 

I Can’t Believe It’s Not Butter! is how labels and ads read for a
liquid product that’s been marketed since 1994. But a federal
appeals court declared itself a believer Tuesday, and said the
manufacturer can keep classifying it as a spray, not a butter or
margarine — and telling consumers that each serving is free of
calories and fats.

“The product comes in a spray bottle, with a finger-activated pump
at the top,” said the Ninth U.S. Circuit Court of Appeals in San
Francisco in a 2-1 ruling
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rejecting a consumer lawsuit. One tablespoon, the legally defined
“serving” for butter or margarine, would require 40 sprays, the
court said, and “common sense tells us that this is not how such a
product is typically used.”

The class-action suit, initially filed in a Bay Area federal court in
2013, accused Unilever, then the manufacturer, of misrepresenting the
amount of calories and fats in each serving and misleading customers
into buying the product or paying too much for it. The liquid in each
12-ounce bottle, the suit said, contains 124 grams of fat and 1,160
calories, and a one-tablespoon serving would be neither calorie-free
nor fat-free.

But the court said the standard serving for sprays is 0.25 grams, so
the manufacturer is neither violating Food and Drug Administration
rules nor deceiving consumers by advertising that the product has zero
calories or fats per serving. 

While consumers in the suit said the product was marketed as a
substitute for butter, “under the FDA regulations, a
‘substitute’ food is not merely one that tastes the same
(believably or not),” Judge Daniel Bress said in the majority
opinion. Instead, he said, a “substitute food” is one that “may
be used interchangeably with another food that it resembles.”

“Most any oil can fit in the ‘butter, margarine, oil,
shortening’ category, but not every butter or oil-based product can
be sprayed,” Bress wrote. The ruling upheld the dismissal of the
suit in 2020 by U.S. District Judge Jeffrey White of Oakland.

Bress, appointed by President Donald Trump, was joined by another
Trump appointee, Judge Lawrence VanDyke. The dissenting opinion came
from an appointee of President Bill Clinton, Judge Carlos Lucero of
the 10th U.S. Circuit Court of Appeals in Denver, temporarily assigned
to the Ninth Circuit.

“The proposition that, absent some Canaan miracle, a bottle of
flavored oil containing 1,160 calories and 124 grams of fat can be
transformed into zero calories and zero grams of fat by the simple act
of replacing the bottle cap with a pump device is ludicrous,” Lucero
wrote. He said the court should let the case go to trial and allow a
judge or jury to decide whether the product should be considered and
regulated as butter.

That view was endorsed Tuesday by Uri Idstrom, a lawyer for the
plaintiffs.

“Packaging the product in a pump-action squirt bottle does not
miraculously transform it into a fat-free, calorie-free food,”
Idstrom said. “Contrary to the majority opinion, we continue to
believe that the FDA did not authorize Unilever to deceptively label
its product 0-fat and 0-calories.” She said the plaintiffs were
reviewing their options, which could include asking the full appeals
court to order a new hearing before an 11-judge panel.

Reach Bob Egelko: [email protected]; Twitter: @BobEgelko

* Food Labeling
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