On September 25, 2013, international law firm Kelley Drye & Warren LLP (Washington D.C., USA) won an appellate victory affirming the early dismissal of a consumer class action at demurrer against their clients, Challenge Dairy, Inc. and Kroger Inc. The class action alleged that the labeling of Challenge's "Spreadable Butter With Canola Oil" product was false and misleading because the label used the word "butter" to name a food that is not a 100% butter product.
The three judge Appellate Court panel found that 1) Plaintiff's claims brought under California's Milk and Milk Processing Act ("MMPA") were preempted by the Federal Food, Drug, and Cosmetic Act ("FDCA"); and 2) the Plaintiff's motion to add additional alleged claims under California's Sherman Act had been properly denied because no reasonable consumer could have been deceived by the labeling of the product.
"Receiving a unanimous decision from the Appellate Court panel is validating of the responsible labeling practices of our clients, and makes clear that the arguments the Plaintiff's advanced in attacking our client's labeling are implausible and fall far short of the reasonable consumer standard," said Keri E. Borders, Partner in Kelley Drye's Los Angeles office, who led Defendants' litigation team in coordination with Co-counsel, Sarah Roller, who heads the firm's Food and Drug Law practice.
