Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 1 of 14 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`EASTERN DIVISION
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`Charles Strow, individually and on behalf of
`all others similarly situated,
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`1:21-cv-05104
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`Plaintiff,
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`
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`- against -
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`Class Action Complaint
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`The J. M. Smucker Company,
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`
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
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`which are based on personal knowledge:
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`1.
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`The J. M. Smucker Company (“defendant”) manufactures, labels, markets, and sells
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`“Butter – No-Stick Spray” without any butter under its Crisco brand (“Product”).
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Charles Strow, individually and on behalf of
`all others similarly situated,
`
`1:21-cv-05104
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`The J. M. Smucker Company,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
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`1.
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`The J. M. Smucker Company (“defendant”) manufactures, labels, markets, and sells
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`“Butter – No-Stick Spray” without any butter under its Crisco brand (“Product”).
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 2 of 14 PageID #:2
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`2.
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`The largest word is “Butter,” with a sizzling pat of butter atop pancakes in a skillet,
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`causing consumers to expect the Product contains butter.
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`3. However, the Product contains no butter.
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`4.
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`Federal and identical state regulations prohibit false and deceptive practices with
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`respect to labeling food and beverages. See Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C.
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`§ 343(a)(1) (a food is misbranded if “its labeling is false or misleading in any particular.”); Illinois
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`Food, Drug and Cosmetic Act (“IFDCA”), 410 ILCS 620/1 et seq.; 410 ILCS 620/21(j) (“[a]
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`federal [food labeling] regulation automatically adopted…takes effect in this State on the date it
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`becomes effective as a Federal regulation.”).
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`5.
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`The Illinois Consumer Fraud and Deceptive Business Practices Act provides
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`protection for consumers purchasing products like Defendant’s Product, and states:
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`Unfair methods of competition and unfair or deceptive acts or practices, including
`but not limited to the use or employment of any deception, fraud, false pretense,
`false promise, misrepresentation or the concealment, suppression or omission of
`any material fact, with intent that others rely upon the concealment, suppression or
`omission of such material fact . . . are hereby declared unlawful
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`815 ILCS 505/2.
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`I.
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`CONSUMERS VALUE BUTTER
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`6.
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`Butter is the only food with a standard of identity codified by Congress, defined as:
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`the food product usually known as butter, and which is made
`exclusively from milk or cream, or both, with or without
`common salt, and with or without additional coloring matter,
`and containing not less than 80 per centum by weight of milk
`fat, all tolerances having been allowed for.
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`21 U.S.C. § 321a
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`7.
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`Congress established a definition for “butter” because consumers value real dairy
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`foods.
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`8.
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`In response to the success of real dairy foods, unscrupulous competitors developed
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`2
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 3 of 14 PageID #:3
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`synthetic, butter-like products made from plant and animal fats, known as vegetable oils or
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`margarine.
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`9. Manufacturers have continually sought to sell foods purporting to contain butter but
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`containing only lower-quality and cheaper vegetable oils.
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`10. Long established FDA guidance reflects consumer appreciation for butter and dairy.
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`11. The FDA recommends that where a food is labeled “Butter ____________” or uses
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`the word “butter” in conjunction with its name, reasonable consumers will expect that whenever
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`butter could be used in a product, it would be, instead of butter substitutes.1
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`12. For numerous reasons, consumers prefer butter to its alternatives.
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`13. First, butter does not contain the trans fats of vegetable oils.
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`14. Second, butter is natural, made by churning cow’s milk.
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`15. Butter substitutes, like vegetable oils, are synthetic.
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`16. Highly refined vegetable oils are subjected to hydrogenation and interesterification,
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`in the presence of chemical catalysts such as nickel and cadmium.
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`17. Third, butter is rich in nutrients like calcium and Vitamins A and D.
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`18. Fourth, butter has a creamy, sweet taste.
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`19. While vegetable oils are typically “refined, bleached and deodorized,” to supposedly
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`provide a neutral taste, the reality is different.
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`20. Vegetable oils are highly susceptible to oxidation.
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`21. The result is “reversion” of the flavor back to that of the original crude oil before it
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`1 Compliance Policy Guide (“CPG”), Sec 505.200, “Butter” Featured in Product Name, Center for Food Safety and
`Applied Nutrition, Office of Regulatory Affairs, March 1988 (“If the product contains both butter and shortening but
`a sufficient amount of butter to give a characteristic butter flavor to the product, an appropriate name would be ‘butter
`flavored ____________’… if the product contains any artificial butter flavor it would have to be labeled in compliance
`with 21 CFR 101.22(i)(2).”).
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`3
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 4 of 14 PageID #:4
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`was processed.
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`22. This flavor is described as “beany, ”“powdery” or “fishy.”
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`23. Vegetable oils detract from any authentic butter taste.
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`24. Though vegetable oils may be described as “refined, bleached and deodorized,” and
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`purportedly do not affect a food’s taste, the reality is different.
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`25. To describe a food’s taste as “buttery” is a compliment, which refers to a light and
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`fluffy texture, while vegetable oils contribute to a waxy mouthfeel which leaves an aftertaste.
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`26.
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`In cooking, butter creates a flaky texture that is softer and less dense than using
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`vegetable oils, because butter is solid at room temperature.
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`II.
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`“BUTTER – NO STICK SPRAY” IS MISLEADING BECAUSE IT LACKS BUTTER
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`27. The name “Butter – No-Stick Spray” is misleading because the Product does not
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`contain any butter, as shown on the ingredient list.
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`INGREDIENTS: CANOLA OIL*, SOY LECITHIN, NATURAL AND ARTIFICIAL
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`FLAVOR, DIMETHYL SILICONE (FOR ANTI- FOAMING), BETA CAROTENE (COLOR),
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`AND PROPELLANT
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`28. Given the absence of any butter, the Product is required to be identified as an
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`artificially butter flavored no-stick spray.
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`29. While the front label contains a statement of “natural and artificial flavor,” this is
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`insufficient to disclose to consumers the Product has no butter.
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`4
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 5 of 14 PageID #:5
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`30. First, the statement is smaller than what is required by FDA regulations.
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`31. Second, the font does not contrast with the background color, making it difficult to
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`notice, and if noticed, to read.
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`32. Third, the “natural and artificial flavor” statement is not linked to the Product’s
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`characterizing flavor, which appears to be butter.
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`33. Consumers are not told by this statement the Product does not contain butter,
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`especially in light of the pat of butter in the skillet in the center of the label.
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`34. Fourth, the Product contains beta carotene, to make it look like the golden hue of
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`butter.
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`35. This tactic is as old as butter’s competitors, who dyed margarine yellow, so as to
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`confuse the harried consumer at the local dry goods store.
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`III. THE PRODUCT IS AN IMITATION OF BUTTER
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`36. The Product is marketed as an alternative to butter in the form of a no-stick spray.
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`37. Consumers are misled because the front label fails to disclose – as required by law –
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`that the purported butter spray is an imitation because “it is a substitute for and resembles another
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`food [butter] but is nutritionally inferior to that food.” 21 C.F.R. § 101.3(e)(1).
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`38. Nutritional inferiority includes a reduction in a measurable amount of 2% or more of
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`any vitamin or mineral listed under 101.9(c)(9). See 21 C.F.R. § 101.3(e)(4)(ii) (“Nutritional
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`inferiority”).
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`39. According to the Nutrition Facts, the Product has no calcium, compared to a serving
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`size of butter, which has three percent of the daily recommended value (“DRV”) of calcium.
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`40. The Product has none of the ingredients required by the standard of identity for butter
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`but has similar physical properties to butter such as being used to prevent food from sticking to a
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`5
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 6 of 14 PageID #:6
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`pan during cooking.
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`41. Consumers are misled because Defendant sells an olive oil no-stick spray, which
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`contains olive oil.
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`42. Consumers are misled because competitor products are prominently identified as
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`“butter flavored,” and disclose they are flavored by natural and artificial flavors. See 21 C.F.R. §
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`101.22.
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`IV. MISLEADING SERVING SIZE COMPARISON TO BUTTER
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`43. The Product misleads consumers with respect to the nutrition information relative to
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`butter.
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`44. The label compares the fat and calories for a serving of butter and margarine to a
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`serving of the Product.
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`45. This is a misleading as the serving sizes are different.
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`46. Butter and margarine have serving sizes of one tablespoon (14 grams), while the
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`serving size for the no-stick spray is 1/3 second spray (.25 g).
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`47. Since the Product is marketed as a butter substitute, the serving size should also
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`reflect more than the limited “pan greasing” application.
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`V. CONCLUSION
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`48. Whether a product contains the ingredient identified on a front label is basic
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`information consumers rely on when making decisions at the store.
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`49. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components, attributes, and features of a product, relative to itself and other
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`comparable products or alternatives.
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`50. The value of the Product that plaintiff purchased was materially less than its value as
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`6
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 7 of 14 PageID #:7
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`represented by defendant.
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`51. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`52. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`53. The Product is sold for a price premium compared to other similar products, no less
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`than approximately $3.49 per 6 oz, a higher price than it would otherwise be sold for, absent the
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`misleading representations and omissions.
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`Jurisdiction and Venue
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`54.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2).
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`55. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`56. Plaintiff Charles Strow is a citizen of Illinois.
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`57. Defendant The J. M. Smucker Company is a Ohio corporation with a principal place
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`of business in Orville, Wayne County, Ohio.
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`58. Plaintiff and defendant are citizens of different states.
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`59. Venue is in this district because plaintiff resides in this district and the actions giving
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`rise to the claims occurred within this district.
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`60. Venue is in the Eastern Division because plaintiff resides in DuPage County, which
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`is where the events giving rise to the present claims occurred.
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`7
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`Parties
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`61. Plaintiff Charles Strow is a citizen of Addison, DuPage County, Illinois.
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`62. Defendant The J. M. Smucker Company, is an Ohio corporation with a principal
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`place of business in Orville, Ohio, Wayne County.
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`63. Defendant is an American manufacturer of jam, peanut butter, jelly, fruit syrups,
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`beverages, shortening, ice cream toppings, and other food products.
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`64. The Product is sold in thousands stores of all kinds – convenience stores, drug stores,
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`grocery stores, big box stores, wholesale clubs and online.
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`65. The Crisco brand has been established for a hundred years and has always sought to
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`emulate butter.
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`66. Crisco was originally made with cottonseed oil and has, since its inception, sought
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`to replace butter in American kitchens.
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`67. However, Americans, and their representatives, implemented regulations and laws
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`to prevent the replacement of valued foods like dairy and butter with those of lesser value, made
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`from vegetable oils.
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`68. Plaintiff bought the Product on one or more occasions within the statute of limitations
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`for each cause of action alleged, at stores including Jewel-Osco, 140 West Lake Street Addison IL
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`60101, between July and August 2021, among other times.
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`69. Plaintiff bought the Product because he expected it contained butter and not its
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`synthetic substitutes.
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`70. Plaintiff did not expect the Product to contain no butter.
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`71. Plaintiff bought the Product at or exceeding the above-referenced price.
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`72. Plaintiff relied on the representations identified here.
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`8
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`73. Plaintiff would not have purchased the Product if he knew the representations were
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`false and misleading.
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`74. Plaintiff chose between Defendant’s Product and other similar products which were
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`represented similarly, but which did not misrepresent their attributes and/or lower-priced products
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`which did not make the statements and claims made by Defendant.
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`75. The Product was worth less than what Plaintiff paid and he would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`76. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
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`with the assurance that Product's representations are consistent with its composition.
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`Class Allegations
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`77. Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of the following
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`classes:
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`Illinois Class: All persons in the State of Illinois who
`purchased the Product during the statutes of limitations for
`each cause of action alleged.
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`Consumer Fraud Multi-State Class: All persons in the
`States of Iowa and Arkansas who purchased the Product
`during the statutes of limitations for each cause of action
`alleged.2
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`78. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`79. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`80. Plaintiff is an adequate representative because his interests do not conflict with other
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`2 The States in the Consumer Fraud Multi-State Class are limited to those States with similar consumer fraud laws
`under the facts of this case: Iowa (Consumer Fraud and Private Right of Action for Consumer Frauds Act, Iowa Code
`Ann. § 714.16 et seq.); Arkansas (Arkansas Deceptive Trade Practices Act, Ark. Code § 4-88-101, et. seq.).
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 10 of 14 PageID #:10
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`members.
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`81. No individual inquiry is necessary since the focus is only on defendant’s practices
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`and the class is definable and ascertainable.
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`82.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`83. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`84. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
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`(Consumer Protection Statute)
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`85. Plaintiff incorporates by reference all preceding paragraphs.
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`86. Plaintiff and class members desired to purchase a product that contained butter and
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`not its synthetic substitutes.
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`87. Defendant’s false and deceptive representations and omissions about the relative and
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`absolute amount of butter was material in that it is likely to influence consumer purchasing
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`decisions.
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`88. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`89. Plaintiff relied on the representations and omissions.
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`90. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`10
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 11 of 14 PageID #:11
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`Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`91. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class
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`prohibit the use of unfair or deceptive business practices in the conduct of trade or commerce.
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`92. Defendant intended that plaintiff and each of the other members of the Consumer
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`Fraud Multi-State Class would rely upon its deceptive conduct, and a reasonable person would in
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`fact be misled by this deceptive conduct.
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`93. As a result of defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, plaintiff, and each of the other members of the Consumer Fraud Multi-State
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`Class, have sustained damages in an amount to be proven at trial.
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`94.
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`In addition, defendant’s conduct showed malice, motive, and the reckless disregard
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`of the truth such that an award of punitive damages is appropriate.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`95. The Product was manufactured, identified, and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that it contained butter and not its synthetic
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`substitutes.
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`96. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`97. This duty is based on Defendant’s outsized role in the market for this type of product,
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`because Dollar General is the largest national chain of stores, where consumers get maximum
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`value for their money.
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`98. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`11
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 12 of 14 PageID #:12
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`retailers, and their employees.
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`99. Defendant received notice and should have been aware of these issues due to
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`complaints by regulators, competitors, and consumers, to its main offices.
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`100. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and was not merchantable because it was not fit to pass in the trade as
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`advertised.
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`101. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`102. Defendant had a duty to truthfully represent the Product, which it breached.
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`103. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience this area, as custodians and owners of the J. M. Smucker company,
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`known for its high-quality goods.
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`104. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant, a leader in shortenings and cooking ingredients.
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`105. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, their purchase of the
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`Product.
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`106. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`107. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained butter and not its synthetic substitutes.
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`12
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`108. Defendant possesses specialized knowledge regarding the consumer expectation that
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`this Product contained butter.
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`109. Moreover, the records Defendant is required to maintain provide it with actual and/or
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`constructive knowledge of the falsity of the representations.
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`110. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`111. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`Case: 1:21-cv-05104 Document #: 1 Filed: 09/27/21 Page 14 of 14 PageID #:14
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: September 27, 2021
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
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`14
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