Entenmann's sells All Butter Loaf Cake.  In case you're worried, this blog post isn't about a lawsuit over whether consumers believe that the cake is made entirely of butter.  Regardless of who we imagine the “reasonable consumer” to be, I think we're pretty much all on the same page that you can't just make a cake from butter (as delicious as that might be).  

That doesn't mean, of course, that “all butter” can never mean “all butter.”  Take, for example, the lawsuit against Smucker involving its “Crisco 100% Extra Virgin Olive Oil No-Stick Spray.”  The plaintiff alleged that the “100%” claim was misleading, because the can of spray includes more than just olive oil; it includes some non-olive oil ingredients as well (such as propellant).  There, the court allowed the case to proceed, holding that the plaintiff had plausibly alleged that reasonable consumers are likely to be misled about whether what “100%” means.  That makes sense in this context, since a can of olive oil spray could, conceivably, contain only olive oil. 

This blog post also isn't about whether the “all butter” claim means that there are no other shortening-type ingredients in the “All Butter Loaf Cake.”  That lawsuit against the owner of Entenmann's, Bimbo Bakeries, was dismissed several years ago.  A plaintiff had alleged that the “all butter” claim was misleading because there are, in addition to butter, some butter substitutes used in the cake as well.  The court held that since the “all butter” claim was ambiguous, reasonable consumers would look at the ingredient list to figure out that the product also contains non-butter shortening-type ingredients.  The court wrote, “when product descriptions are merely vague or suggestive, every reasonable shopper knows the devil is in the details.”  The court's holding there is, essentially, that, in this context, a reasonable consumer understands -- for reasons that are not entirely clear to me -- that “all butter” may or may not mean what it says. And, back to our initial question, the court also tackled the issue of whether the cake was made entirely of butter, writing that, “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.’"

So what is this blog post about? 

A plaintiff sued Bimbo Bakeries alleging that Entenmann's “All Butter” claim is misleading because the butter flavor in the cake doesn't just come from the butter used in the cake; it comes from artificial flavorings that are used as well.  Like in these other cases, in order to survive a motion to dismiss, the plaintiff had to plausibly allege that the “All Butter” claim is likely to mislead a reasonable consumer.  

This court acknowledged that it doesn't really know how consumers will interpret an “all butter” claim, writing, “It is not easy to determine what a reasonable consumer would understand ‘All Butter Loaf Cake’ to mean in the context of the label at issue in this case.”  

Believe it or not, the court first seriously considered the question of whether the claim could mean that the cake was entirely made of butter.  The court wrote, “At first glance, the name suggests a product made entirely of butter, a la state-fair-style butter sculptures.”  The court held that reasonable consumers wouldn't be confused about this, though, since the packaging not only depicts slices of cake, it has a little window that shows you that you're not buying a butter sculpture made in the shape of a cake.  For consumers who are easily misled – or who, perhaps spend a lot of time at state fairs looking at butter sculptures while eating butter on a stick – the photo and the window “immediately dispels that impression.”  

Once the court had determined that the “All Butter” claim didn't communicate to consumers that the cake was made entirely of butter, the court then considered what the claim did communicate. Not surprisingly, the court easily concluded that the claim conveys the message that butter was, in fact, used to make the cake.  The court wrote, “Seeing that the product is a cake and that its name is ‘All Butter Loaf Cake,’ a reasonable consumer would no doubt expect the cake's ingredients to include butter."  Taking this holding to its logical conclusion, the court also holds if butter is one of the ingredients in the cake, but not the only ingredient, that there must be other ingredients in the cake as well.  

And that's where things get tricky. 

The court then says that it doesn't know how reasonable consumers will interpret an “All Butter” claim.  Holding that the claim is “ambiguous,” the court writes, “there is not enough information on the label for a consumer to draw any conclusion about what it means.”  The court further holds that the plaintiff's claim that “All Butter” means that butter is the only source of butter flavor in the product to be “implausible.”  The court explains, “The name might just as plausibly imply the absence of non-butter shortening agents or the lack of some other alternative to butter."  Of course, that argument was essentially rejected in the prior Entenmann's case. 

But, aligning its decision with the prior Entenmann's case, the court dismissed the lawsuit, concluding that, since the claim is ambiguous, consumers would read the rest of product label to figure out what the claim does mean.  The court wrote, “one presumes that when the reasonable consumer failed to immediately comprehend what ‘All Butter’ meant in relation to a product that obviously contains ingredients other than butter, that consumer would have further examined the product's packaging.”  And, since consumers would have found both “butter” and “artificial flavors" on the ingredient list, there's no way that reasonable consumers would be misled. 

Ellison-Robbins  v. Bimbo Bakeries, 2024 WL 4332049 (E.D. Mo. 2024).