Metropolitan News-Enterprise


Thursday, September 26, 2013


Page 1


C.A. Rejects Suit Over Alleged Mislabeling of Dairy Products




The Court of Appeal for this district yesterday affirmed the dismissal of a consumer’s suit claiming products labeled as “spreadable butter with” canola or olive oil are being improperly sold in California supermarkets.

Presiding Justice Norman Epstein, writing for Div. Four, said Mary L. Simpson’s claims against The Kroger Corporation and Challenge Dairy Products, Inc. are partially preempted by federal law, and that to the extent preemption does not apply, her claims fail because she “failed to demonstrate that a reasonable consumer would be misled by the labels on the products.”

Kroger owns the Ralphs supermarket chain, and Challenge supplies Ralphs with dairy items, including two spreadable butter products whose labels the plaintiff complained of. One of those is sold under a label reading “CHALLENGE BUTTER” at the top and “SPREADABLE BUTTER WITH CANOLA OIL” at the bottom—with the word “SPREAD” underneath—and the other has the same language at the top and “TUSCAN STYLE SPREADABLE BUTTER with CANOLA & OLIVE OIL” at the bottom, also with “SPREAD” underneath.

Simpson alleged that she bought a tub of one of those products at Ralphs two years ago, and that she thought she was buying a whipped butter product, but discovered when she got home “that the product she purchased was not in fact butter, but contained edible oils and other ingredients.” 

The defendants demurred on the ground that the products were properly labeled under the California Milk and Milk Products Act of 1947, and that the claim of non-compliance with the MMPA was preempted by federal law,

Trial Court Ruling

Los Angeles Superior Court Judge Barbara Scheper sustained demurrers by both defendants on the grounds that the products were “nonstandardized” butter for which there is a federal, not a state, labeling requirement, and that the claims were therefore preempted. The judge also denied, as futile, a motion to amend the complaint to allege a claim under the state Sherman Food, Drug and Cosmetic Law.

Epstein, writing for the Court of Appeal, explained that the federal Food Drug and Cosmetic Act, under which there is no private right of action, preempts state enforcement of any labeling requirement that is not identical to those adopted under the federal act.

Contrary to the plaintiff’s argument, the presiding justice wrote, the labeling requirements of the MMPA are not, with respect to the two products involved in the case, identical.

Federal Requirements

The FDCA, he explained, has labeling requirements for “margarine” or “oleomargarine,” but not for “spread,” for which there is a labeling requirement under the MMPA that differs from the requirement for labeling margarine.

He rejected the plaintiff’s argument that her MMPA claims are not preempted “because the broad federal definition of ‘margarine’ is substantially identical to the state definition of ‘spread,’ and both state and federal law have the identical prominent labeling and misbranding requirements for this kind of butter substitute.”

The argument is inconsistent with the plaintiff’s position that the Challenge products should not be labeled margarine, Epstein wrote, adding that the labeling requirements for margarine under the FDCA and the MMPA are not identical.

The jurist also rejected the Sherman Law argument that the defendants were guilty of “improper prominence”—that the word ‘butter” was so prominent on the labels as to mislead consumers into thinking they were buying standard butter.

“The labels on the products here clearly informed any reasonable consumer that the products contain both butter and canola or olive oil,” he wrote. “This was plain on both the top and side panels of the tubs in which the products are sold.  No reasonable person could purchase these products believing that they had purchased a product containing only butter.”

The case is Simpson v. The Kroger Corporation, B242405.


Copyright 2013, Metropolitan News Company