Key Takeaways In Bimbo's 'All Butter' False Label Win

Published date01 December 2021
Subject MatterConsumer Protection, Media, Telecoms, IT, Entertainment, Consumer Law, Advertising, Marketing & Branding
Law FirmFinnegan, Henderson, Farabow, Garrett & Dunner, LLP
AuthorMs Margaret Esquenet and Daniel R. Mello, Jr.

'Tis the season to bring together family and friends over food, and if you've cooked your own Thanksgiving dinner, you know the ingredients in your recipes.

But if you've gone with a store-bought "All Butter Loaf Cake," would it be reasonable for you to believe the only shortening ingredient was butter even if soybean oil was conspicuously listed in the ingredients?

In the Nov. 4 Boswell v. Bimbo Bakeries USA Inc. opinion, this was the issue.

After purchasing an Entenmann's "All Butter Loaf Cake" and paying the price for what New Yorker Monica Boswell allegedly thought would be a higher quality, butterfat-only treat, Boswell discovered soybean oil, in addition to butter, in the package's ingredients list.

Apparently feeling deceived by the packaging and claiming that she never would have purchased the product had she known it was made with vegetable oil and artificial flavors, Boswell sued Bimbo Bakeries, which owns Entenmann's-branded food products, on Oct. 25, 2020, in the U.S. District Court for the Southern District of New York.

In her complaint, Boswell alleged that the "All Butter" packaging was misleading because the cake contains not only butter, but also soybean oil and artificial flavors.1

To plausibly plead claims under Sections 349 and 350 of the New York General Business Laws, Boswell needed to substantiate a claim that Entenmann's packaging was deceptive, and falsely advertising, under Sections 349 and 350, respectively, both of which require a demonstration that Entenmann's packaging was "materially misleading," or in other words that it was "likely to mislead a reasonable customer acting reasonably under the circumstances."2

Entenmann's moved to dismiss for failure to state a claim,3 and the court granted the motion. Applying the 2017 In re: 100% Grated Parmesan Cheese Marketing and Sales Litigation4 decision of the U.S. District Court for the Northern District of Illinois, the court outlined a standard that distinguishes between two types of false or misleading packaging:

  • Labels that are unambiguous and misleading in light of the ingredients and nutritional facts; and
  • Labels that are ambiguous and misleading, but resolvable by referencing the ingredients and nutritional facts.

As an example of an unambiguous and misleading label, the court cited the 2018 Mantikas v. Kellogg Co. decision.

Essentially, Cheez-It crackers packages were labeled "whole grain" or "made with whole grain" and the U.S. Court of Appeals for the Second Circuit found that these labels "falsely imply that the grain content is entirely or at least predominately whole grain" when, in fact, the package's ingredients list revealed that the primary grain content was enriched white flour.5

Because the misleading statements were unambiguous, the ingredients disclosures did not cure the deception.6

As an example of an ambiguous label, the court referred to the 100% Grated Parmesan Cheese case.

There, the products contained not only parmesan cheese, but also the noncheese ingredient cellulose. The court found that "the description '100%...

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