Ninth Circuit: I Can’t Believe It’s Not Butter spray no butter substitute

SAN DIEGO (CN) — Yes, I Can’t Believe It’s Not Butter! Spray is not butter, it’s a spray, and its manufacturer did not mislead consumers by advertising it has no calories or fat, a divided Ninth Circuit panel ruled Tuesday.  

A class of consumers sued Unilever United States Inc,, the then-manufacturer of I Can’t Believe It’s Not Butter! Spray, a derivative of the company’s famous butter-flavored vegetable oil spread that’s packaged in pump-action squirt bottles. 

The consumers claimed while the packaging advertised the product contains zero grams of fat and zero calories per serving, the entire bottle actually contains 1,160 calories and 124 grams of fat. They claimed that since they were using the product as a substitute for butter and using far more of the product then the suggested serving amount, the company intentionally misled consumers by making the serving size small. 

According to the plaintiffs, 40 sprays of the product equaled one tablespoon of butter. As such, the product should be treated and labeled as a butter substitute, they said. 

A federal judge rejected those claims, finding the federal Food, Drug, and Cosmetic Act preempts any legal claim that would cause nutrition label requirements to be different from those set by federal law. Writing for the divided Ninth Circuit panel Tuesday, U.S. Circuit Judge Daniel Bress agreed.

“In alleging that consumers use more than one spray of Butter! spray, plaintiffs do not raise a question of fact regarding product classification. They instead challenge the reference amount customarily consumed — a value established by the FDA. As the district court correctly recognized, plaintiffs’ approach would allow consumers to 'overcome a motion to dismiss' by 'insisting that people consume more (or less) of a product' than the FDA reference amount, 'rendering all sorts of products mislabeled at a consumer’s whim.' That is not the law,” the Donald Trump appointee wrote in the opinion. “In view of the FDCA’s express preemption provision, if plaintiffs believe that Butter! spray should have a higher customary usage reference amount, the proper forum in which to air that grievance is the FDA (or Congress), not the courts.”

The FDA sets serving sizes for foods based on the amount the food is “customarily consumed” per occasion by everybody at and above the age of four, which are then “ expressed in a common household measure that is appropriate to the food.” 

After a lengthy discussion of the process of food labeling, the panel rejected the plaintiffs’ claims that the product should be labeled as a butter substitute.

“As a matter of legal classification, it is a spray. Although plaintiffs claim there are factual disputes at play here, in truth plaintiffs simply disagree with the FDA’s framework for how these types of products should be labeled,” Bress wrote.

Once the FDA sets the amounts for serving sizes for products, manufacturers have to identify the relevant category for their products and then set a serving size that tracks with the FDA’s reference amount for that category. Because Unilever categorized its spray as a fat or oil spray, the serving size on its nutrition label aligns with federal law, Bress wrote. Fellow Trump appointee U.S. Circuit Judge Lawrence VanDyke joined Bress' opinion.

U.S. Circuit Judge Carlos Lucero, a Bill Clinton appointee sitting by designation from the 10th Circuit, scoffed at the majority's reasoning that the spray could be labeled as zero fat, zero calories per serving.

“The proposition that, absent some Canaan miracle, a bottle of flavored oil containing 1,160 calories and 124 grams of fat can be transformed into zero calories and zero grams of fat by the simple act of replacing the bottle cap with a pump device is ludicrous. Yet, that is appellee Unilever’s defense to appellants’ state law consumer protection claims.” Lucero wrote in his dissent.

Lucero argued that the term “spray” used in regulations isn’t clear and compared it to the term “squirt,” noting the FDA categorizes nonstick cooking sprays like Pam as “spray types” as well. But he said Unilever hadn't successfully shown its product should be categorized as a spray. 

“In context of the clear language of the statute and regulations, at trial the fact finder could properly find that I Can’t Believe It’s Not Butter Spray is categorized in the “butter, margarine, oil, [and] shortening” category rather than as a “spray.” Such a finding would well square with the reality that even though squirted from a bottle, the product contains the expected calories rather than zero calories,” Lucero wrote. 

The majority, however, held it is ludicrous to think consumers would spray the Unilever product 40 times to lubricate a pan or substitute for butter.

“The notion that Butter! spray could be housed under the FDA’s legal classification for ‘butter,’ meanwhile, is simply implausible,” Bress wrote for the majority. “The FDA’s ‘reference amount’ for ‘butter, margarine, oil, [and] shortening’ is one tablespoon. Plaintiffs agree that to generate one tablespoon of Butter! spray, 40 sprays would be required. Common sense tells us that this is not how such a product is typically used. Nor does the plaintiffs’ complaint allege otherwise. The complaint states at one point that some consumers ‘report using far more than one spray’ and that ‘some even admit to pouring the product.’ But under the FDCA and its implementing regulations, serving sizes are based on amounts ‘customarily consumed.’ There is no well-pleaded allegation in the complaint that consumers customarily drown their food in 40 sprays of I Can’t Believe It’s Not Butter! Spray.

Attorneys for the plaintiffs and Unilever did not respond to requests for comment by press time. 

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