Buttery Smooth Application: District Courts Narrowly Apply Second Circuit Precedent in False-Ad Cases
Consumers in false-advertising cases have long targeted food packaging for purportedly misrepresenting the presence or quantity of an ingredient in a product. These litigants typically contend that a product’s name—e.g., “All Butter Loaf Cake””—or other labeling text—e.g., “Made With Whole Grain”—creates expectations that the product be made entirely or predominantly with the advertised ingredient. And when these products do not contain “sufficient” amounts of the advertised ingredient, consumers claim to have been deceived. In response, manufacturers often point to the specific wording of the challenged labeling statement as well the product’s ingredient list, which details the presence and quantity of each ingredient as sufficient to dispel any unwarranted expectation.
We have previously explored the Second Circuit’s decision in Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. Dec. 11, 2018), which held that a plaintiff plausibly alleged that the Cheez-It crackers had deceptively labeled the product as “made with whole grain” when, in fact, the product’s principal ingredient was enriched flour. The gravamen of the Second Circuit’s holding was that although enriched flour was noted on the ingredient list, the statement “made with whole grain” was unambiguous and created the impression that whole grain was the predominant ingredient. Absent ambiguity, consumers must not be expected to scrutinize the ingredient list to correct that misimpression.
Since 2018, federal courts have applied Mantikas in false-advertising cases, resulting in mixed outcomes. But a recent decision by United States District Court for the Southern District of New York, Kamara v. Pepperidge Farm, Inc., 2021 WL 5234882 (S.D.N.Y. Nov. 9, 2021), joins a growing number of courts in the circuit narrowly applying Mantikas in a way that does not obviate the significance of the ingredient list. Rather, as this line of cases has explained, when the challenged text is vague, puffery, or a generalization, ambiguity can be resolved by turning to the list of ingredients or a Nutrition Facts panel for clarification.
In Kamara, the named plaintiff bought a pack of “Golden Butter” crackers at a local Target store. According to the complaint, given the product’s name, Kamara expected that the crackers were made entirely or predominantly with butter, and that “whenever butter could be used in the product, it would be used instead of its synthetic substitute, vegetable oils.” Id. at 1. She was therefore allegedly surprised to learn that the Golden Butter crackers contained a substantial amount of vegetable oil. Id. In response, Defendant Pepperidge Farm moved to dismiss, arguing that the product’s name accurately identified butter as the predominant ingredient in the product.
The court agreed with Pepperidge Farm. It reasoned that the complaint failed to plausibly allege why a reasonable consumer would believe that the crackers contained only butter. The court noted that the phrase “Golden Butter” was used without any elaboration and that there was nothing on the label to suggest that the product does not contain butter-substitutes in addition to butter.
The court then distinguished the facts of the case from those in Mantikas. The Golden Butter crackers did not deceive consumers because a reasonable consumer would expect that the predominant ingredient was butter, and looking at the ingredient list would confirm that reasonable expectation. This was a material distinction because, in Mantikas, the Second Circuit found a reasonable consumer reading the front label would expect that the predominant ingredient was whole grain – an expectation directly contradicted by the ingredient list. Therefore, under the Kamara court’s reading of Mantikas, so long as the ingredient list confirms consumer expectations, it is still highly relevant in determining how reasonable consumers understand product labels.
This narrow reading of Mantikas follows a recent line of cases affirming the continued importance of the ingredient list to the reasonable consumer analysis. For example, in Boswell v. Bimbo Bakeries, plaintiff claimed that defendants’ product—the “All Butter Loaf Cake”—was misleading because the loaf cake also contained soybean oil and artificial flavors. 2021 WL 5144552, at *1 (S.D.N.Y. Nov. 4, 2021). The court granted defendants’ motion to dismiss, reasoning that when taken literally, the words “All Butter” mean “that the product is entirely butter” and that “no reasonable consumer would adopt that reading because the product is obviously not a stick of butter.” Id. at 3. But more importantly, the Boswell court distinguished Mantikas as a case involving packaging with prominent labeling text that was unambiguous and misleading. In contrast, the Boswell court found that the packaging involved in its case had a prominent label that was ambiguous, requiring reference to the list of ingredients or a Nutrition Facts panel to try to resolve the ambiguity. Thus, the court found that, when viewed in the full context of the entirety of the label, the labeling was not deceptive.
Additionally, in Sarr v. BEF Foods, Inc., 2020 WL 729883 (E.D.N.Y. Feb. 13, 2020), which the Kamara court also relied upon, the plaintiff claimed that a prepared mashed potatoes product was misleading when the packaging noted it was made with “Real Potatoes, Milk & Butter” when in fact, it also included soybean and oils. 2020 WL 729883, at *1 (E.D.N.Y. Feb. 13, 2020). Similar to the facts in Kamara, the court found that the product at issue contained real butter; that it was “not plausible that a reasonable consumer would likely interpret the ‘real butter’ representation to imply that the Mashed Potatoes did not also contain additional fats; and that the ingredient list “discloses that the product contains vegetable oils.” Id. at 5. Importantly, the court found that unlike in Mantikas, “the plaintiffs concede that the Mashed Potatoes’ predominant fat ingredient is the one emphasized in the defendant’s labeling—butter.” Id. at 5.
Kamara, in many ways, was an easier case than either Boswell or Sarr: the Golden Butter product packaging contained no elaborations, and the Court’s resolution of the case was therefore made simpler. And absent any misstatement on the label, the Court took the sensible position that an ingredient list may properly be considered at the motion to dismiss stage. In so holding, the Court joined a growing body of case law that has properly distinguished Mantikas and found that a product’s ingredient list really does matter to reasonable consumers.
 Moreover, the content and ordering of ingredient lists are not compiled at a manufacturer’s whim; it is done pursuant to federal law. 21 C.F.R. § 101.4(b)(14)