ConAgra Can’t Slip Out of Cooking Spray Case

     SAN FRANCISCO (CN) – ConAgra’s sprayable butter is not the same thing as nonstick cooking sprays such as Pam, making its nonfat, no-calorie claims contestable in court, a federal judge ruled in a class action.
     Lead plaintiff Erin Allen sued ConAgra in March, claiming it uses “unrealistically” small serving sizes to understate the amount of fat and calories in its Parkay Spray.
     Conagra advertises the spray as having “0 fat” and “0 calories,” though one bottle contains 93 grams of fat and 832 calories, Allen said in her class action.
     The Food and Drug Administration allows companies to label products as “fat-free” if they contain less than 0.5 grams of fat per serving, and “0 calories” if they have fewer than 5 calories per serving, according to Allen’s complaint.
     Parkay Spray lists its serving sizes as 0.2 grams, or one spray, for cooking, and 1.0 grams, or five sprays, for topping. This would give an 8-oz, bottle 1,130 one-spray servings and 226 five-spray servings.
     The problem, Allen claims, is that consumers do not use such artificially small serving sizes, especially when it comes to butter, so ConAgra’s claims are false and misleading.
     ConAgra which grosses $20 billion in annual sales, sought dismissal, claiming the complaint is pre-empted by the Food, Drug and Cosmetic Act (FDCA) and the Nutrition Labeling and Education Act (NLEA) of 1990. It claims it complies with those laws.
     U.S. District Judge John Tigar ruled that the case boils down to whether Parkay Spray belongs in the “spray type” fat or oil category, or the “butter, margarine, oil, shortening” category.
     ConAgra argued that Parkay Spray is not butter because it does not contain milk or cream, under the FDCA definition.
     Tigar, however, pointed out that serving sizes for imitation and substitute products must be the same as the foods for which they substitute.
     “Imitation butter, which may contain neither milk nor cream, therefore belongs in the same reference amount category as butter,” Tigar ruled. “The court concludes that plaintiff has adequately alleged that the serving size listed on Parkay Spray bottles is the wrong serving size.”
     Tigar found that because Allen is not trying to impose requirements that differ from those under the FDCA, NLEA or FDA regulations, her claims are not pre-empted.
     “The complaint alleges that Parkay Spray’s labels and marketing are false and misleading because they advertise that Parkay Spray is ‘fat free’ and ‘calorie free’ when it is not,” Tigar wrote. “Plaintiff’s allegation that defendant’s statements violate FDA regulation as written is necessary for her claims to avoid pre-emption, but not necessary for her to establish the underlying state law causes of action. The FDCA therefore does not preclude plaintiff from bringing those claims.”
     Tigar added that “plaintiff has adequately pled her fraud allegations, and the question of whether she can prove them is not for the court to decide at this juncture.”
     He denied ConAgra’s motion for dismissal on the breach of express warranty claim, but granted dismissal on the unjust enrichment claim.

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