A federal court in California has dismissed as preempted certain claims filed by a putative class alleging that Unilever deceptively markets “I Can’t Believe It’s Not Butter! Spray.” Pardini v. Unilever U.S., Inc., No. 13-1675 (U.S. Dist. Ct., N.D. Cal., order entered July 9, 2013). The dismissal was without prejudice, and the plaintiff has 30 days to amend her complaint. Other claims were also dismissed without prejudice because they were not sufficiently pleaded or because the plaintiff lacked standing to assert a claim under the consumer protection laws of the other states named in the complaint. A claim for unjust enrichment was dismissed with prejudice.

The plaintiff claims that the product is deceptively marketed as having “0 fat” and “0 calories” when it actually contains 771 calories and 82 grams of fat per bottle. While the product label specifies that the no-fat and no-calories claim is per serving, and users are referred to the nutrition label for serving size, the plaintiff alleges that the defendant has “set an artificially small serving size so that the calories and fat per serving can be rounded down to zero” and that the listed serving sizes fail to account for the manner in which the product is customarily used. She seeks to represent a nationwide class of purchasers.

The court determined that the plaintiff’s serving size claim is preempted by federal law, but indicated that in amending the complaint, the plaintiff must allege specific facts showing why the product is not a spray and should identify the appropriate serving size for the product, “as well as the fat and calorie content associated with that serving size.”

Not preempted was the plaintiff’s “asterisk” claim, which alleged that because the product packaging “makes a ‘zero fat’ nutrient content claim, the nutrition label must include an asterisk next to ‘soybean oil’ and ‘buttermilk’ and a notation indicating that these ingredients contain some amount of fat.” The court rejected the defendant’s claim that the label statement “Contains 0 g fat” is a “voluntary disclosure that explains the basis for the ‘0 g trans fat’ claim,” finding that “this argument is inconsistent with the FDCA [Food, Drug, and Cosmetic Act] and its implementing regulations.”

The court also rejected the defendant’s argument that the claims should be dismissed “because they are based on alleged violations of the FDCA and because there is no private right of action under the statute.” According to the court, the claims fall within the category of “state law claims alleging that non-compliance with the FDCA regulations deceived and harmed consumers, i.e., claims that would exist in the absence of the FDCA.” As such, and “[a]bsent an FDCA violation, these allegations could potentially support a claim for violation” of state laws.