By Blake Brittain
(Reuters) – Unilever’s “I Can’t Believe It’s Not Butter!” spray is governed by different U.S. Food and Drug Administration regulations than butter and similar products, a U.S. appeals court ruled Tuesday, defeating a long-running false advertising class action.
A split 9th Circuit Court of Appeals rejected claims that Unilever based its zero-fat, zero-calorie advertising for the spray on artificially low serving sizes.
The plaintiffs’ attorney Uri Idstrom of the Eureka Law Firm said they “continue to believe that the FDA did not authorize Unilever to deceptively label its product” and are reviewing their options.
Representatives for Unilever and Upfield, the Unilever spinoff that now sells “I Can’t Believe It’s Not Butter” products, did not immediately respond to requests for comment.
The consumer plaintiffs sued Unilever in 2013. They claimed the FDA mischaracterized Unilever’s product as a “spray” instead of butter, margarine, oil or shortening, which have larger serving sizes under FDA regulations.
The group said the listed serving sizes were too low to reflect how people actually use the spray, and that they would have paid less or not bought it at all if they had known its true fat and calorie content.
The 9th Circuit on Tuesday upheld a Northern California federal court’s 2021 decision to dismiss the lawsuit.
The court said the FDA properly classified the product as a spray, and that if the plaintiffs “believe that Butter! Spray should have a higher customary usage reference amount, the proper forum in which to air that grievance is the FDA (or Congress), not the courts.”
U.S. Circuit Judge Carlos Lucero said in a dissent that it was “ludicrous” that a “bottle of flavored oil containing 1,160 calories and 124 grams of fat can be transformed into zero calories and zero grams of fat by the simple act of replacing the bottle cap with a pump device.”
The case is Pardini v. Unilever United States Inc, U.S. Court of Appeals for the 9th Circuit, No. 21-16806.
(Reporting by Blake Brittain in Washington)
