In the case, defendant Kym Pardini claims to have been misled by product claims on I Can’t Believe It’s Not Butter Spray margarine.
Pardini and his lawyers on behalf of the putative class claim to have been wronged by paying more for the product that they otherwise would have based on its zero fat and zero calorie claims. The product actually has 771 calories and 88 grams of fat per bottle, the complaint notes.
The claims are based on the serving size, which the complaint says is artificially small.
If those calories and fat grams can be diced up into small enough portions, they can be made to disappear from a regulatory standpoint. FDA rules on nutrient content claims permit firms to make ‘zero fat’ claims on products containing less than 0.5g fat per serving and ‘zero calorie’ claims on products containing fewer than 5 calories per serving.
Case for preemption
“I think this would be a case for an early federal preemption argument. This is clearly something that FDA has weighed in on,” said attorney Rakesh Amin, of the Chicago-based law firm Amin Talati. “You may not like the minimum serving size that FDA has authorized” for spray products but that rule is on the books, he said.
In a preemption motion, the defendants would seek to have the case dismissed, arguing that FDA, not the district court, has jurisdiction over label claims and serving sizes.
The case is very similar to another case filed recently by the same law firm. That case, filed against ConAgra over its Parkay Spray product, takes a similar tack in arguing that the serving size on the label doesn’t match how consumers actually use the product.
Of the Parkay case, Jonathan Emord from law firm Emord & Associates said: "This Plaintiff’s argument is unusual and, in my view, unlikely to succeed.
"Enforcement of the Food Drug & Cosmetic Act is exclusively by the FDA, so a private plaintiff asserting in effect that a company has created a serving size at odds with actual consumer use would ordinarily be limited to pursuing the complaint through the FDA.”
California's Sherman Food Act
But filing the Unilever case in the northern district of California appears to be part of the strategy, said another lawyer who is familiar with the issue but asked not to be named because of a tangential relation to the case.
Among the statutes of the state of California is the Sherman Food Act, which adopted federal food regulations as California’s own. Courts in California have split, the lawyer said, over the issue of federal preemption in light of this quirk of California law.
Some judges have ruled one way, others have gone a different route. The same judge might rule differently on the issue in different cases, and until the issue goes up the court chain, these individual decisions don’t set precedents. So whether the Pardini vs. Unilvever case goes forward could hinge partly on a roll of the dice as to which judge is assigned to the case.
Claims of being misled into buying a product based on its zero-fat, zero-calories claims or paying more for it than you otherwise would have don’t amount to much in terms of real harm, Amin said.
“I have seen class actions where there is definitely liability on the part of the defendant,” Amin said. “At the end of the day these allegations are somewhat without merit and without objectiveness.
“I think these allegations of being deceived are manufactured. I’m dubious that they will be able to collect anything outside of a settlement,” he said.