Pepperidge Farms “Golden Butter” crackers take center stage in a false and deceptive advertising suit originating in New York. Were the claims attempting to butter up consumers, or were they grounded in the ingredients list? Another food fight in federal court.
Plaintiff Hawa Kamara filed suit in the Southern District of New York, alleging false and deceptive advertising against Pepperidge Farms. The lawsuit alleged that the company’s “Golden Butter” crackers, despite their name, contain “a non-de minimis amount of vegetable oil, more than expected given the absence of any qualification of ‘Golden Butter,’” and that the name of the crackers was therefore false advertising. According to the Plaintiff, “consumers prefer butter to chemically produced ‘vegetable’ oils for reasons including taste, health and avoidance of highly processed artificial substitutes.” The Plaintiff claims that consumers pay a premium for “natural” ingredients, and that the packaging misrepresented the product and deceived consumers.
The “Golden Butter” crackers list butter in the name on the front of the packaging and in the ingredients on the back of the packaging. In fact, butter appears as the second ingredient in the “Golden Butter” crackers, after flour; the list goes on to include ingredients such as vegetable oil. At issue, according to the plaintiff, is the representation of butter as the principal, and natural, shortening for the cracker.
The Southern District dismissed the case against Pepperidge Farm, stating that a reasonable consumer could believe the name “Golden Butter” referred to the flavor of the cracker and not the proportion of the ingredients. It was important to the judge that the crackers actually did contain butter; the opinion concluded that “Butter is the second ingredient listed in the ingredients list, after flour but ahead of vegetable oils, suggesting that butter predominates over other fats or oils.” Further, it posited that “A reasonable consumer who encountered defendant’s packaging would accurately understand the ‘Golden Butter’ cracker to be shortened and flavored with butter. Furthermore, the court ruled that a “reasonable consumer” reading the disputed labeling “would accurately understand the Golden Butter cracker to be shortened and flavored with butter,” and would not believe that “the use of butter precluded secondary usage of other fats or oils.”
Packaging claims and ingredients that are not aligned are not uncommon. Many businesses have landed in court for making a claim that misrepresents what’s in the package. One of the ways to prevent litigation, legal fees, and bad press is to substantiate your claims. Claims substantiation will play a role prior to launch to help you evaluate whether your packaging is misleading, and can also help refine your marketing messaging. It can even be evidence in your favor in the event of a challenge; all of our claim substantiation reports are “litigation ready.” Butter up your audience, the right way, by substantiating your claims.