Judge Steven Seeger has denied B&G Foods Inc. and The J.M. Smucker Company’s motion to dismiss a false advertising suit. He states that, “much like their “Butter No Stick Spray”, B&G’s arguments that their labeling could not plausibly mislead customers do not stick.
In late 2021, Charles Strow filed a complaint arguing that B&G falsely advertises that their butter non-stick cooking spray contains real butter, when it does not. B&G, then, filed a motion to dismiss stating that while the front of the label does describe the product as butter, the front also contains the words “naturally and artificially flavored,” and the back expounds on how their product contains all the flavor and none of the calories of butter, since it does not actually contain butter.
The judge expressed sympathy with Charles’ complaint, supposing that perhaps “he had heated up the waffle iron, and was ready and raring to go, until he discovered the absence of butter in the can, and had to go with Plan B for breakfast.”
The order, primarily citing Bell Atl. Corp. v. Twombly, details that while B&G’s butter spray’s label does include plenty of information on the back to adequately inform the customer, the front is sufficiently deceptive to warrant a jury’s time and consideration. In particular, the judge ruled that a reasonable consumer will not take the time to thoroughly decipher everything on a product’s label, and will instead make a snap decision based on the most visible elements on the front. As such, the use of “butter” as a noun, the depiction of a pancake with butter melting on top, and the can’s buttery color can plausibly mislead potential customers into expecting real butter in the spray.
The case is being heard in the Northern District of Illinois, where the plaintiff resides, and he is represented by Spencer Sheehan. B&G is represented by BraunHagey & Borden, LLP.