Schwan's Consumer Brands sells “Mrs. Smith's Dutch Apple Pie" that has an “original flaky crust made with real butter.”  What does “made with real butter” mean here?  Does it mean that butter is the only shortening used to make the crust, that butter is the primary shortening used, or just that there's some amount of butter in the crust?  That was the issue in a recent lawsuit in federal court in New York. 

Advertisers often struggle with “made with” type claims.  (Check out our blog posts, for example, on stoneground wheat crackers, English muffins made with whole grain, mashed potatoes made with real butter, and crackers made with whole grain, to name a few.)  How do consumers interpret these types of claims?  Or, perhaps more importantly, how do consumers who happen to be judges interpret them?  When does a “made with” claim communicate that it's a primary ingredient versus just being one of many ingredients?  In the Mrs. Smith's Dutch Apple Pie case, the decision provides some helpful guidance to advertisers on how to navigate this issue. 

Here, a consumer sued under New York law, alleging that the use of “made with real butter,” along with a picture of two pats of butter, misleads consumers into believing that butter is the exclusive, or at least predominant, shortening that is used to make the crust.  Schwan's moved to dismiss, arguing that the claim was preempted by federal law, and that, in any event, the claim is not misleading to reasonable consumers. 

First, the court easily rejected the defendant's preemption argument, holding that the federal Food, Drug, and Cosmetic Act's preemption provisions do not apply to statements that are not “nutrient content claims.”  Here, the court held that, consistent with FDA regulations, Schwan's use of “made with real butter” was not a nutrient content claim.  

Next, the court considered whether reasonable consumers would be misled by the “made with real butter” claim.  In order for a claim to be deceptive under New York law, it would need to be “likely to mislead a reasonable consumer acting reasonably under the circumstances.”  When considering whether a claim is deceptive, the court must “consider the challenged advertisement as a whole, including disclaimers and qualifying language.”  That's because, “context is critical.”  

What was determinative to the court here was the question of whether the claim relates to a primary ingredient in the product.  The court explained, “When a product's packaging highlights the presence of a primary ingredient, it may be misleading for the product to contain less of that primary ingredient than alternatives.”  For example, crackers made with whole grain.   On the other hand, if an advertiser is making statements about ingredients that aren't primary, the court said that, “it is not reasonable for consumers to expect the ingredient is present in any specific amount or in larger quantities than other ingredients.”  

The court held, then, that Schwan's “made with real butter” claim is not misleading because butter is not one of the primary ingredients in the pie.  The court explained, “It was unreasonable for Plaintiff to interpret the statements on the box about butter, which is not the primary ingredient in either apple pie or pie crust, to mean that there was more butter in the crust than any other shortening.”  The court explained that the decision may have come out differently, however, if the claim related to one of the primary ingredients in the pie, such as apples or flour.  

Davis v. Schwan's Consumer Brands, 2024 WL 3596886 (S.D.N.Y. 2024).