Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Mo.: Suit alleging misleading labeling on Entenmann’s ‘All Butter’ Loaf Cake is dismissed, (Oct 1, 2024)

By Donielle Tigay Stutland, J.D.

The court found that, “a reasonable consumer would also know that a cake must have ingredients other than butter."

A federal district court in Missouri dismissed a suit against Bimbo Bakeries USA Inc. the maker of Entenmann’s “All Butter” Loaf Cake which had alleged that the product’s label was “misleading because the Product includes added artificial flavor which contributes to its butter taste yet omits this information from the front label.” The court concluded that even if there is some ambiguity in the term “all butter” the complaint fails to show a likelihood that a reasonable consumer would be misled by the label (Ellison-Robbins v. Bimbo Bakeries USA, Inc., No. 4:23-cv-00232-SEP (E.D. Mo. Sept. 27, 2024)).

Background. The consumer purchased Entenmann’s All Butter Loaf Cake a few times since 2021. The consumer alleged that the labeling for the cake is “misleading because the Product includes added artificial flavor which contributes to its butter taste, yet omits this information from the front label,” and that “the phrase ‘All Butter’ misleads customers into thinking that the cake does not contain any artificial flavors.” The consumer alleged that, based on its misleading name, she bought the All Butter Loaf Cake for the “premium price” of “no less than $3.99 per 11.5 OZ,” which is “higher than it would be sold for absent the misleading representations and omissions[.]”

The consumer filed a proposed class action suit, alleging claims of violation of the Missouri Merchandising Practices Act (MMPA); breaches of express warranty, implied warranty of merchantability, and the Magnuson Moss Warranty Act; negligent misrepresentation; fraud; unjust enrichment; and injunctive relief.

Merchandising Practices Act. The court began its analysis by looking at whether the consumer had stated a claim under the MMPA. The MMPA prohibits the “act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce.” Mo. Rev. Stat. §407.020.1. The 2020 amendments to the MMPA “place more stringent requirements on plaintiffs raising MMPA claims,” specifically, the MMPA allows a court to “dismiss a claim as a matter of law where the claim fails to show a likelihood that the method, act, or practice alleged to be unlawful would mislead a reasonable consumer.”

The court found that under the amended 2020 standards, the complaint failed to state a claim, in that it “fails to show a likelihood” that the product’s label “would mislead a reasonable consumer.” The court looked at the packaging, noting that it, “conspicuously depicts slices of cake and also gives the consumer a peek of the product itself,” dispels an idea that it would mislead a reasonable consumer. Seeing that the product is a cake and that its name is “All Butter Loaf Cake,” a reasonable consumer would no doubt expect the cake’s ingredients to include butter. But the court also pointed out that “a reasonable consumer would also know that a cake must have ingredients other than butter. And the package says nothing about those ingredients.”

The court did acknowledge the ambiguity in the phrase “All Butter” on the front of the package. However, the court relied on precedent from its district which has found that, “when a label is ambiguous, a reasonable consumer would look for more information on the package to resolve the ambiguity.” Wrote the court, “the front of All Butter Loaf Cake’s package does not make any representations about the provenance of its ingredients, e.g., ‘all natural’ or ‘no artificial flavors,’ so if the reasonable consumer wondered whether ‘All Butter’ implied something about the product’s ingredients, she would have had to read the ingredient list.”

The court found the consumer’s claim—that a reasonable consumer could conclude from that phrase alone that there are no non-butter sources of flavor—to be implausible. “The name might just as plausibly imply the absence of non-butter shortening agents or the lack of some other alternative to butter.” The court indicated that the MMPA requires that the plaintiff “show a likelihood” that the label would mislead a reasonable consumer, and here the plaintiff did not. The court noted that, the complaint “points to nothing on the label or anywhere else suggesting that the product” is “all natural” or contains “nothing artificial.” The court dismissed the claim under the MMPA finding the consumer’s complaint “fails to show a likelihood” that the All Butter Loaf Cake’s label “would mislead a reasonable consumer.”

Fraud and unjust enrichment claims. The court also dismissed the consumer’s claims for fraud and unjust enrichment. The court concluded that the consumer failed to allege that the cake manufacturer provided her with a false representation (fraud) or that the cake maker retained a benefit through her purchase of the product under inequitable or unjust circumstances (unjust enrichment).

The case is No. 4:23-cv-00232-SEP.

Judge: Pitlyk, S.

Attorneys: Daniel F. Harvath (Harvath Law Group LLC) for Dixie Ellison-Robbins. August Horvath (Foley Hoag LLP) for Bimbo Bakeries USA, Inc.

Companies: Bimbo Bakeries USA, Inc.

Cases: Advertising MissouriNews