The 2nd District Court of Appeals agreed with the lower court’s decision that no reasonable consumer would be misled into thinking that a product labeled as spreadable butter with canola oil was not 100% butter.  Mary Simpson sued Kelley Drye clients Kroger Corp. and Challenge Dairy Products alleging that the labeling of Challenge’s “Spreadable Butter With Canola Oil” product was false and misleading because the label used the word “butter” to name a food that is not a 100% butter product.

Kelley Drye moved to dismiss the plaintiff’s claims on the grounds that they were pre-empted by the labeling requirements of the Food Drug & Cosmetic Act and the complaint was dismissed, with prejudice, by Judge Barbara Scheper of the Los Angeles County Superior Court in May 2012. 

Simpson appealed, but in a unanimous decision by the three-judge panel, the appeals court ruled that Simpson’s claims were not plausible and that no reasonable consumer would have been misled by the labeling of the Spreadable Butter With Oil Products.