I've always loved Entenmann's products. The Rich Frosted Donuts, the Crumb Coffee Cake, and my all-time favorite, the Raspberry Danish Twist. I could go on. I have never tried, however, Entenmann's All Butter Loaf Cake, which was the subject of a recent false advertising case in the United States District Court for the Southern District of New York. Although I'd like to give it a try (for research purposes, of course), since I'm trying to cut back on the carbs right now, I'll have to settle for digging into the details of the lawsuit, rather than the cake itself.
A purchaser of the All Butter Loaf Cake sued Bimbo Bakeries USA, the owner of the Entenmann's brand, alleging that the "all butter" claim is false and misleading, because the product contains not only butter, but soybean oil and artificial flavors as well.
The plaintiff sued for false advertising under New York law. In order to state a claim, a critical element that the plaintiff must show is that the advertising was "likely to mislead a reasonable consumer acting reasonably under the circumstances." In order to determine whether advertising is misleading to a reasonable consumer, "context is crucial." This means that the court must consider "the challenged advertisement as a whole, including disclaimers and qualifying language."
When considering whether a claim on product packaging is problematic, courts often look to see whether the claim on the packaging is unambiguous and misleading or whether the claim is ambiguous, but that ambiguity (and any potential confusion) is cleared up by other information on the packaging, such as the ingredients list. In other words, if the claim on the front of the packaging is clear, there's no reason to look elsewhere on the packaging to see what it means. But, if the claim is ambiguous, the theory is that consumers will understand that they need to examine the packaging more closely to figure out what the claim actually means. The court said that this theory rests on the principle that, "when product descriptions are merely vague or suggestive, every reasonable shopper knows the devil is in the details."
Here, the court dismissed the lawsuit, holding that the the claim "all butter" is ambiguous. The court explained, "Taken literally, the description could be understood to mean that the product is entirely butter -- although no reasonable consumer would adopt that reading because the product is obviously not a stick of butter and 'All Butter' modifies 'Loaf Cake.' Put differently, any reasonable consumer would be aware that the product is, notwithstanding the label 'All Butter,' likely to contain other ingredients commonly found in cake, such as flour, sugar, milk, and eggs." The court also noted that the phrase "all butter" could mean that no butter substitutes were used in the product, or just that there were no other flavors in the cake, such as almond, chocolate, or cinnamon.
Because the court was convinced here that the phrase "all butter" is ambiguous, the court determined that consumers "would know exactly where to look to investigate," which is the ingredients list. And, if they did so, they would learn that the product contains non-butter ingredients.
Boswell v. Bimbo Bakeries USA, 20-CV-8923 (JMF) (S.D.N.Y. November 4, 2021).
"when product descriptions are merely vague or suggestive, every reasonable shopper knows the devil is in the details"