Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: Suit alleging deceptive label on Country Crock plant butter is dismissed, (Oct 1, 2024)

By Donielle Tigay Stutland, J.D.

“Packaging that merely depicts or asserts the presence of an ingredient typically cannot lead a reasonable consumer to conclude that the product contains a certain amount of that ingredient.”

An Illinois federal district court dismissed a proposed class action brought by a consumer against Upfield US, Inc., the maker of Country Crock plant butter. The consumer had alleged that the label on a container of Country Crock plant butter which stated, “made with avocado oil,” is deceptive and misleading because consumers expect the product to have “more than a relatively de minimis amount” of avocado oil. The court dismissed the claims after concluding that the product’s labeling would not mislead a reasonable consumer. Wrote the court, “No reasonable consumer could believe that there would be a specific (or predominant) amount of avocado oil in the product just based on the front label’s statements that it was “made with avocado oil,” contained “79% vegetable oil spread,” and a back label with an ingredient list” (Redmond v. Upfield US Inc., No. 1:22-CV-06334 (N.D. Ill. Sept. 30, 2024)).

Background. The named Illinois consumer purchased the product at a grocery store in Chicago at least once in October 2021. The consumer alleged that the label is misleading because consumers expect, supposedly based on the label, that the product will have more than a “relatively de minimis amount” of avocado oil. The consumer alleged that Upfield sold more of the product and at a higher “premium” price of $4.89 per box.

The consumer brought a class action against Upfield US Inc., the maker of the Country Crock plant butter, asserting claims under the Illinois Consumer Fraud Act, other state consumer fraud acts, the Magnuson Moss Warranty Act, as well as claims for common law breach of express and implied warranty, negligent misrepresentation, fraud, and unjust enrichment.

Consumer Fraud Act claim. The court began its analysis by reviewing the consumer’s Illinois Consumer Fraud Act claim. To state a Fraud Act claim, the purchaser must show “(1) a deceptive or unfair act or promise by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) that the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Moreover, the court pointed to Bell v. Publix Super Markets, Inc., 982 F.3d 468, 476 (7th Cir. 2020), which noted that in product-label cases, “plaintiffs’ claims survive if they have plausibly alleged that the defendants’ front labels likely lead a significant portion of reasonable consumers to falsely believe something that the back labels belie.” Bell also lays out that, although “an accurate fine-print list of ingredients does not foreclose as a matter of law a claim that an ambiguous front label deceives reasonable consumers,” id., “where plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels or other advertising, dismissal on the pleadings may well be justified,” id.

The court indicated that even when viewing the allegations in the consumer’s favor, his proposed interpretation of the product label was “unreasonable and fanciful.” It is correct that the front label says, “made with avocado oil” and has a picture of part of an avocado on it. However, the court highlighted that the front label also says “79% vegetable oil spread.” And the back label is consistent with the front label: the first ingredient in the ingredients list is “blend of plant-based oils (palm fruit, palm kernel, canola and avocado oil).” The court stressed that the front label says that the so-called “plant butter” is “made with avocado oil” and “79% vegetable oil”—and the back label confirms all of that to be true.

The court pointed to numerous cases which have had similar analysis, including Hamidani v. Bimbo Bakehouse LLC, 2023 WL 167513, at *3 (N.D. Ill. Jan. 12, 2023), which found “Packaging that merely depicts or asserts the presence of an ingredient typically cannot lead a reasonable consumer to conclude that the product contains a certain amount of that ingredient.

The court found that here, the consumer conceded that the product label says “made with avocado oil” and then bears an ingredient list with avocado oil. Wrote the court, “No reasonable consumer could believe that there would be a specific (or predominant) amount of avocado oil in the product just based on the front label’s statements that it was “made with avocado oil,” contained “79% vegetable oil spread,” and a back label with an ingredient list.” The court dismissed the claim.

Other claims. The court also dismissed the consumer’s claims for violations of other states’ consumer fraud acts and the Magnuson Moss Warranty Act, as well as the consumer’s claims for common law breach of express and implied warranty, negligent misrepresentation, fraud, and unjust enrichment, indicating that they, “are all premised on the same allegations of misrepresentation and deception as the Fraud Act claim.”

The case is No. 1:22-CV-06334.

Judge: Chang, E.

Attorneys: Spencer Sheehan (Sheehan & Associates, P.C.) for Casanova Redmond. Darci F. Madden (Bryan Cave Leighton Paisner LLP) for Upfield US Inc.

Companies: Upfield US Inc.

Cases: Advertising IllinoisNews