Health Law Daily Wrap Up, FOOD STANDARDS—S.D.N.Y.: Court tosses misleading product label claim on vegetable oil spread, (Apr 7, 2025)

By Molly Platnick

Bronx man could not prove he purchased a product labeled “Made With Olive Oil” nor show actual injury.

A federal district court in New York granted a food manufacturer’s motion for summary judgment against a consumer alleging deceptive product claims. The consumer brought suit challenging the “Made With Olive Oil” label on plant butter. The court found no jury could decide in the consumer’s favor because he had not sufficiently alleged the label was misleading nor shown how the allegedly deceptive label injured him. The court analyzed the claims under New York’s General Business Law (GBL) and considered expert testimony introduced by the consumer (Clemmons v. Flora Food US, Inc., No. 22-cv-355 (PKC) (S.D.N.Y. Mar. 28, 2025)).

Background. On April 12, 2021, the consumer bought a twin pack of the food manufacturer’s plant butter from a retail store in the Bronx, New York. The plant butter was introduced by the manufacturer in 2019 and marketed as “dairy-free and vegan spread that contains a combination of plant-based oils blended together.” The plant butter initially bore the label “Made With Olive Oil,” but, in 2020, switched to a label that said, “With Olive Oil.” No other changes were made to the product or its ingredients. The manufacturer began selling the twin pack in March 2020 and put the phrase “With Olive Oil” on the outer sleeve, lid, and front label. The consumer purchased the plant butter at the same Bronx retail store four times between April 12-July 14, 2021.

The consumer brought this action against the manufacturer on behalf of himself and a putative class of other purchasers who he alleged relied on the product’s “Made With Olive Oil” label. The consumer asserted the company’s marketing was deceptive under the GBL because the label misled him to believe the plant butter consisted solely of olive oil. The consumer further alleged the manufacturer’s misrepresentation injured him, as he did not reap the full value of his purchase and paid a “price premium” for the product.

The court previously granted the food manufacturer’s motion to dismiss in part but denied it in regard to the consumer’s GBL claims. The manufacturer moved for summary judgment at the close of discovery. The court granted the motion for summary judgment, finding no reasonable jury could conclude the consumer purchased a plant butter labelled “Made With Olive Oil,” nor show actual injury.

Timing. The threshold issue was whether the consumer purchased a plant butter twin pack with a misleading label. Under New York law, a statement is materially misleading if it is “likely to mislead a reasonable consumer acting reasonably under the circumstances.” The court elaborated this is an objective standard that requires a “significant portion of the general consuming public or of targeted consumers” could be misled.

The statement at issue here was “Made With Olive Oil.” However, the court reasoned the consumer could not have purchased a product that had that that label. The manufacturer changed the packaging to “With Olive Oil” in March 2020, and the consumer admits he first bought the product in April 2021. The product has an expiration date six to eight months after it is manufactured and versions with the original label would have been taken off the shelves by August 2020. Because there was no evidence the retail store where the consumer bought the product routinely sells food beyond their expiration date, the court concluded a reasonable jury could not find the consumer purchased plant butter labelled “Made With Olive Oil” in April 2021. Furthermore, the consumer acknowledged buying the plant butter in twin packs, but as detailed above, the twin packs were always labelled “With Olive Oil.”

The consumer claimed he introduced evidence raising a material issue of fact. He referenced his deposition testimony and his lawyer’s declaration, both of which state the plant butter he purchased from the retail store “could have been an old product” left on the shelf. The court is not persuaded and rejects this evidence as mere speculation about the retail store’s business practices, insufficient to raise a triable issue of fact. Even if these allegations are accepted, that the consumer may have purchased an expired plant butter is not enough to overcome the discrepancy presented by the twin packs.

The consumer argued an alternate theory of liability that there is no difference between the labels “Made With Olive Oil and the “With Olive Oil.” This is not the rule in New York State, where case law holds “with” indicates one ingredient, versus “made with” suggests a predominant or exclusive ingredient. A survey conducted by the consumer’s own expert seemed to confirm this theory that 27.7% of consumers reported they interpreted “Made With Olive Oil” to mean oil was the only ingredient, whereas only 12.4% interpreted “With Olive Oil,” this way. The court ultimately declined to consider whether “With Olive Oil” was materially misleading because the consumer had only pleaded “Made With Olive Oil” was misleading. The court emphasized the consumer had repeatedly been given the opportunity to amend his complaint to include the later label but had expressly told the court he “did not believe amendment of the Complaint is necessary.”

Injury. The further issue was whether the consumer suffered an actual injury from the plant butter label. To prove actual injury under GBL section 349 and 350, a plaintiff must show he did not receive the full value of his purchase because he was materially misled. Here, the consumer cannot show he was injured by the misleading label because he cannot show the label was on the product he purchased. The consumer countered he paid a “price premium” because he would not have purchased the plant butter but for the alleged misleading label. New York case law requires more than “merely purchasing a mislabeled” product to prove injury under GBL 349 and 350. A plaintiff may show price premium by demonstrating “overpayment” or offering a comparative analysis of products. The court concluded the consumer had not done that here and determined there was not enough evidence to support he was injured by paying a price premium.

The case is No. 22-cv-355 (PKC).

Judge: Castel, P.

Attorneys: Angele Aaron (Sheehan & Associates, PC) for Duval Clemmons. August T. Horvath (Foley Hoag LLP) for Flora Food US Inc.

Companies: Flora Food US Inc.

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