Conagra Slips Out of Parkay Spray False Ad Suit (subscription to Law360 required)

  • The Nutrition Labeling and Education Act (NLEA) requires food intended for human consumption and offered for sale to bear nutrition information that provides a serving size that reflects the amount of food customarily consumed.  FDA updated the regulations on serving sizes in May of 2016 to provide more realistic Reference Amounts Customarily Consumed (RACCs).  The RACC for “Fats and Oils: Spray types” and “Fats and Oils: Butter, margarine, oil, shortening” are 0.25 grams and one tablespoon, respectively.
  • On August 12, 2020, a California federal judge granted summary judgment for Conagra Foods, Inc. in a lawsuit filed in 2013 alleging the labeling of Parkay Spray, which is labeled as a spray-type fat and oil with a RACC of 0.25 gram, uses artificially small serving sizes in order to disguise the true fat and calorie content of its product.  The judge did not consider whether the plaintiffs would ultimately be able to prove the label is misleading or deceptive in violation of California and Hawaii consumer protection laws based on allegations that the product is used as a buttery topping, is marketed as an alternative to butter for use on foods like corn and bread, and is in fact used as a topping by consumers.  Instead, the judge found it is not possible to conclude that Parkay Spray belongs in the butter, margarine, oil, and shortening reference amount category, as opposed to the spray-type fat and oil category, because the product could not be “used interchangeably” with butter or margarine.  Accordingly, since plaintiffs seek to impose state law requirements that are not identical to the federal requirements, the judge ruled that the deceptive labeling claims are preempted as a matter of law.
  • The order otherwise pointed out that FDA has already declined to amend the spray-type fats and oils category (based on a lack of data that could be used for calculating a different RACC) after being made aware of the precise consumer concerns raised by the plaintiffs.  In this regard, the judge also refused Conagra’s request to seal the contents of consumer inquiries and complaints concerning Parkay Spray, although Conagra has 30 days to more narrowly tailor a request to seal certain other documents in the case.