Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 1 of 18 PageID #:49
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`
`
`Plaintiff,
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`
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`Case No.: 1:21-cv-05104
`Judge Steven C. Seeger
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`
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`Charles Strow, individually and on behalf of all
`others similarly situated,
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`
`
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`– against –
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`B&G Foods, Inc.,
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`Defendant.
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`MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT B&G FOODS, INC.’S
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`MOTION TO DISMISS
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 2 of 18 PageID #:50
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`TABLE OF CONTENTS
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`INTRODUCTION ..................................................................................................................... 1
`BACKGROUND ....................................................................................................................... 1
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`A.
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`B.
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`C.
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`D.
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`The Parties .......................................................................................................... 1
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`Butter .................................................................................................................. 2
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`Cooking Spray .................................................................................................... 2
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`The Label on Crisco® Butter No-Stick Spray ....................................................... 3
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`Plaintiff’s Causes of Action................................................................................. 4
`E.
`ARGUMENT ............................................................................................................................. 5
`I.
`PLAINTIFF’S CLAIMS ARE IMPLAUSIBLE .............................................................. 5
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`A.
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`B.
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`The No-Stick Spray’s Label Discloses the Obvious: It Contains No Butter.......... 7
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`Plaintiff’s Alternative Theory, That the Product Is Misleadingly Marketed as a
`Butter Alternative, Also Fails .............................................................................10
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`The Nutrition Information Comparison Chart Is Not Misleading ........................12
`C.
`THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE ...........................13
`II.
`CONCLUSION .........................................................................................................................13
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`i
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 3 of 18 PageID #:51
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ................................................................................................................8
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`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ................................................................................................................8
`
`Bowring v. Sapporo U.S.A., Inc.,
`234 F. Supp. 3d 386 (E.D.N.Y. 2017) .................................................................................... 11
`
`Campbell v. Drink Daily Greens, LLC,
`2018 WL 4259978 (E.D.N.Y. Sept. 4, 2018) ................................................................... 10, 11
`
`Davis v. G.N. Mortg. Corp.,
`396 F.3d 869 (7th Cir. 2005) ....................................................................................... 9, 10, 11
`
`Hayes v. General Mills, Inc.,
`No. 19-cv-05626, 2021 WL 3207749 ......................................................................................9
`
`Ibarrola v. Kind, LLC,
`83 F. Supp. 3d 751 (2015) ..................................................................................................... 10
`
`Lujan v. Defenders of Wildlife,
`504 U.S. 555 (1992) ................................................................................................................9
`
`Runnion v. Girl Scouts of Greater Chicago & NW Ind.,
`786 F.3d 510 (7th Cir. 2015) ................................................................................................. 16
`
`Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
`551 U.S. 308 (2007) ................................................................................................................8
`
`TransUnion v. Ramirez,
`141 S.Ct. 2190 (2021) .............................................................................................................9
`
`Zahora v. Orgain LLC,
`No. 21 C 705, 2021 WL 5140504 .......................................................................... 8, 12, 13, 14
`
`STATUTES
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`21 U.S.C. § 337(a) .................................................................................................................... 12
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`ii
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 4 of 18 PageID #:52
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`RULES
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`Fed. R. Evid. 201(b)(1) ...............................................................................................................5
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`REGULATIONS
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`21 C.F.R. § 101.22 .................................................................................................................... 12
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`
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`iii
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 5 of 18 PageID #:53
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`Defendant B&G Foods, Inc. (“B&G Foods”) respectfully submits its Motion to Dismiss.
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`INTRODUCTION
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`Plaintiff claims that he was injured because he thought that Crisco® brand Butter No-
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`Stick Spray contained butter. (First Amended Complaint (“FAC”). ¶¶ 1-3.) Plaintiff does not
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`explain how he could actually believe that butter—a solid—could fit through the tiny aperture of
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`the spray nozzle on an aerosol can, or why he would believe the product was made from butter
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`when the label he purported to read and rely on says “Buttery Flavor For Your Food Without
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`The Butter” (emphasis added), and the words “Natural & Artificial Flavor” appear next to the
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`word “Butter.” The No-Stick Spray is not stored in the refrigerator section, like butter, and the
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`very words on the package Plaintiff claims misled him compare the fat and calorie content of the
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`No-Stick spray against the fat and calorie content of butter.
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`The allegations in the FAC do not state a claim. Twombly and Iqbal enable the Court to
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`use its common sense when evaluating such pleadings, and it is implausible—indeed,
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`impossible—that Plaintiff was misled. Such cases have no business clogging up the federal
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`courts. Plaintiff’s claims do not address social wrongs; they are fictional harms churned up by a
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`lawyer. This action should be dismissed with prejudice under Rule 12(b)(6).
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`BACKGROUND
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`A.
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`The Parties
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`B&G Foods, including its subsidiaries and predecessor companies, is a 130-year-old
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`American food company that makes a variety of high quality, shelf-stable and frozen packaged
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`foods. B&G Foods owns the Crisco® brand, which created the first shortening product made of
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`plant-based oils. Plant-based oils offer many advantages to butter and other animal fats that
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`consumers desire, including being shelf stable, tolerant of high heat, and resistant to rancidity.
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`1
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 6 of 18 PageID #:54
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`The Crisco® brand now includes a variety of plant-based cooking oils, baking sticks, and
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`alcohol-free No-Stick Cooking Sprays.
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`Plaintiff Charles Strow alleges that he “bought [Crisco® No-Stick Spray] on one or more
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`occasions.” (FAC ¶ 68.) He claims that he “bought the [Crisco® No-Stick Spray] because he
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`expected it contained butter and not its synthetic substitutes[,]” and relied upon “the
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`representations identified [in the FAC].” (FAC ¶¶ 69, 72.)
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`B.
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`Butter
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`Plaintiff admits that butter is a “solid at room temperature.” (FAC ¶ 26.) The Court may
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`also take judicial notice as to the nature of butter. Fed. R. Evid. 201(b)(1). It is a dairy product
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`used extensively in cooking and baking since 8,000 B.C. Amy Reiter, How Butter Was Born –
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`and Why It Spread, The Food Network, available at https://www.foodnetwork.com/fn-
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`dish/news/2017/03/how-butter-was-born-and-why-it-spread. Any characterization of butter as a
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`flowing liquid or easily manipulated mist is belied by more than 10,000 years of normal, human
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`experience with the product: it is solid at room temperature, hard as a rock if left in the
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`refrigerator too long, and melts when heated. It is not susceptible to spritzing and therefore is
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`not sold in spray cannisters.
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`C.
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`Cooking Spray
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`Plaintiff alleges that the No-Stick Spray contains canola oil, soy lecithin, natural and
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`artificial flavor, an anti-foaming agent, a coloring agent, and propellant (FAC ¶ 27); which are
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`typical components of cooking spray. The Complaint further explains that cooking spray is not
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`solid at room temperature. (FAC ¶¶ 15, 19-26.) Cooking spray is applied to pots and pans to
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`prevent food from sticking to them. It is not renowned for its extensive uses in the culinary arts,
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`and it is only used in kitchens to prevent food from sticking to cookware. If a culinary student
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`2
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 7 of 18 PageID #:55
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`attempted to replace butter in any given recipe with cooking spray they would fail the course,
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`and most likely be told to pursue another vocation.
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`D.
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`The Label on Crisco® Butter No-Stick Spray
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`The pleading alleges that Plaintiff bought the cooking spray because of two parts of the
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`No-Stick Spray’s label.1 (FAC ¶ 72.)
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`First, Plaintiff alleges that he bought the product because the “front label” of the
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`cylindrical can states Crisco® “Butter No-Stick Spray.” (FAC ¶¶ 1-2.) Next to the word
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`“Butter,” the label says, “Natural & Artificial Flavor.”
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`
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`Second, the Complaint claims that Plaintiff read and relied on the panel on the label that
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`compares the fat and calorie content of one serving of “[Crisco® Spray]” to one serving of
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`“butter and margarine” and one serving of “oil.” (FAC ¶¶ 43-47.) Directly above this panel, in
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`the same size font, is the statement “Buttery Flavor For Your Food Without The Butter.”
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`1 Plaintiff also states that “the Product contains beta carotene, to make it look like the golden hue
`of butter” (FAC ¶ 34), however the spray is not visible to the consumer prior to purchase—the
`spray can is opaque (FAC ¶ 1)—and Plaintiff claims he relied upon “representations,” not the
`color of the spray (FAC ¶ 72). Therefore, this allegation is not relevant to any of Plaintiff’s
`claims.
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`3
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`

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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 8 of 18 PageID #:56
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`Directly below the panel are the instructions for use of the cooking spray: “A One-Second Spray
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`Covers a 10” Skillet. Directions: 1. Shake Well 2. Hold Can 6 to 12 inches from cookware or
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`food 3. Spray unheated surfaces only.”
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`
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`E.
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`Plaintiff’s Causes of Action
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`Plaintiff seeks to assert claims under the Illinois Consumer Fraud and Deceptive Business
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`Practices Act (“ICFA”); the Consumer Acts of other states; express and implied warranties, and
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`the Magnuson Moss Warranty Act; and negligent misrepresentation, fraud, and unjust
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`enrichment. All these causes of action are based on the same two features of the label noted
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`above. (FAC ¶¶ 67, 85-110.)
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`4
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 9 of 18 PageID #:57
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`ARGUMENT
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`To survive a motion to dismiss under 12(b)(6), a complaint must “state a claim to relief
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`that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To survive a
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`motion to dismiss under Rule 12(b)(6), the complaint must give the defendant fair notice of the
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`basis for the claim, and it must be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009); see also Twombly, 550 U.S. 544, 555. “A claim has facial plausibility when the plaintiff
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`pleads factual content that allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Iqbal, 556 U.S. 662, 678. When ruling on Rule 12(b)(6), the
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`Court must consider the complaint in its entirety, as well as other sources courts ordinarily
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`examine when ruling on Rule 12(b)(6) motions to dismiss, including documents incorporated
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`into the complaint by reference and matters of which a court may take judicial notice. Tellabs,
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`Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
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`I.
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`PLAINTIFF’S CLAIMS ARE IMPLAUSIBLE
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`Because Plaintiff cannot plausibly allege that he was misled by the label on the No-Stick
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`Spray, his ICFA claim should be dismissed, along with claims brought under other states’
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`analogous statutes.2 Each of Plaintiff’s causes of action requires him to prove that he relied to
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`his detriment on Crisco®’s label. Zahora v. Orgain LLC, No. 21 C 705 (VMK), 2021 WL
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`5140504, *3, 5 (N.D. Ill. Nov. 4, 2021) (“to state a claim under the ICFA, [plaintiff] must allege
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`. . . a deceptive act or practice by [defendant and] . . . actual damage to her that was . . .
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`proximately caused by the deception” and claims for breach of express and implied warranty,
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`negligent misrepresentation, fraud, and unjust enrichment are similarly premised on alleged
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`2 Because Plaintiff’s claims are all based on the same facts, they all fail together. See Orgain,
`No. 21 C 705, 2021 WL 5140504, at *2 (dismissing entire complaint when the alleged deception
`underlying all causes of action was implausible).
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`5
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 10 of 18 PageID #:58
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`misrepresentations.) (citing Davis v. G.N. Mortg. Corp., 396 F.3d 869, 883 (7th Cir. 2005);
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`Hayes v. General Mills, Inc., No. 19-cv-05626, 2021 WL 3207749, at *4 (N.D. Ill. July 29, 2021
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`(noting plaintiff’s ICFA and common law claims “rise and fall together”)). Similarly, to invoke
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`the limited jurisdiction of the federal courts, a plaintiff must show that they incurred an injury
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`caused by the defendant’s conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);
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`TransUnion v. Ramirez, 141 S.Ct. 2190, 2204 (2021). Plaintiff cannot plausibly allege any of
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`this.
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`First, Plaintiff’s claim that he thought Crisco® No-Stick Spray contained butter does not
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`satisfy the plausibility standard of Twombly and Iqbal given the factual impossibility of this
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`proposition, coupled with the fact that the product expressly states that it does not contain butter
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`in the same part of the label Plaintiff claims to have read. Courts have repeatedly dismissed
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`similar claims—many of which were brought by Plaintiff’s lawyer—that are predicated on
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`selectively reading or ignoring labels.
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`Second, Plaintiff alternatively claims that he was misled because No-Stick Spray is
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`marketed as a butter “imitation” but does not properly disclose that it is an imitation as
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`supposedly required by various FDA regulations. This claim makes even less sense, because
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`Plaintiff could not simultaneously believe he was buying butter and a butter imitation. And in
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`any event, No-Stick Spray makes no pretenses to be butter—it is spray oil.
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`Third, Plaintiff also claims that “The Product misleads consumers with respect to the
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`nutrition information relative to butter” because the label compares the fat and calories contained
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`in the servings of No-Stick Spray and butter that would be used for “pan greasing,” rather than
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`equal amounts of No-Stick Spray and butter. (FAC ¶ 43-47.) This claim makes the least sense,
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`and only underscores that Plaintiff knew that the product did not contain butter because it was,
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`6
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 11 of 18 PageID #:59
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`according to him, marketed not as butter or even a butter imitation, but rather “marketed as an
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`alternative to butter.” (FAC ¶ 36.)
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`A.
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`The No-Stick Spray’s Label Discloses the Obvious: It Contains No Butter
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`Plaintiff does not plausibly allege that he believed that No-Stick Spray contained butter
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`for at least four reasons:
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`First, the product is no-stick spray, and the label says “No-Stick Spray.” Butter is not
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`sprayable—it is solid at room temperature. Plaintiff does not, and could not, plausibly allege any
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`facts to show that he believed that butter can be propelled through a spray-can’s nozzle. See
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`Ibarrola v. Kind, LLC, 83 F. Supp. 3d 751, 758 (2015) (holding Plaintiff could not plausibly
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`allege that she believed the sugar in defendant’s snacks was unrefined, because she could not
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`believe that she was “eating straight sugar cane in Vanilla Blueberry Clusters or any other food
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`product because sugar cane in its natural, unprocessed state is indigestible.”).
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`Second, the label states: “Buttery Flavor For Your Food Without The Butter.” This
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`representation appears directly above the comparison of No-Stick Spray and butter’s fat and
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`calorie content, upon which Plaintiff alleges he relied in making his purchase (FAC ¶¶ 43-47,
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`72.) The presence of a disclaimer is separately fatal to Plaintiff’s claims. See, e.g., Campbell v.
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`Drink Daily Greens, LLC, 2018 WL 4259978, *2 (E.D.N.Y. Sept. 4, 2018) (dismissing case by
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`Plaintiff’s lawyer, where supposed misrepresentation was explained in disclaimer); Davis v. G.N.
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`Mortg. Corp., 396 F.3d 869, 884 (7th Cir. 2005) (“when analyzing a claim under the ICFA, the
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`allegedly deceptive act must be looked upon in light of the totality of the information made
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`available to the plaintiff.”).
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`In Daily Greens, the plaintiff claimed that it was misleading to label cold-pressed juice as
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`“cold-pressed,” “not pasteurized,” and “fresh” when the products were subject to “high pressure
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`processing,” an FDA-approved method for removing pathogens and other harmful microbes
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`7
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 12 of 18 PageID #:60
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`from juice without heating it. The product labels disclosed that the juice was both cold-pressed
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`and then high-pressure processed. While the complaint included some “carefully cropped”
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`images of the labels, it excluded those portions which disclosed the high pressure processing. Id.
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`at *2. “[T]his disclaimer appear[ed] directly above and below other, smaller-font text [plaintiff]
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`claim[ed] to have read and relied upon.” Id. at *3. The Court held that plaintiff’s contention that
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`the labels did not do enough to disclose the high pressure processing “amounts to little more than
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`grammatical sophistry, and it is implausible on its face.” Id. Accordingly, plaintiff’s claims
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`were dismissed. Id. See also Bowring v. Sapporo U.S.A., Inc., 234 F. Supp. 3d 386, 391
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`(E.D.N.Y. 2017) (dismissing plaintiff’s claim that she was misled into believing that Sapporo
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`beer was imported from Japan when the label disclosed it was brewed in Canada).
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`Third, the ingredient list3 does not contain butter. (FAC ¶ 27.)
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`Fourth, the label states “Natural & Artificial Flavor” right after the word “Butter,”
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`disclosing that butter is the flavor of the spray, not the content of the spray. Plaintiff claims that
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`this disclosure is “insufficient,” but he does not allege what he could have plausibly thought this
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`language modified other than the word “butter” or what it could mean other than that the product
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`was butter flavored. Plaintiff also claims that the flavor disclosure is inadequate because the font
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`makes it difficult to read. (FAC ¶ 31.) But Plaintiff admittedly read and relied upon this
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`statement. (FAC ¶ 72.)4 That is fatal to his claim. See Daily Greens, 2018 WL 4259978, at *3.
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`3 Plaintiff includes the ingredient list as support for his claim that the No-Stick Spray’s label is
`deceptive (FAC ¶ 27), and alleges without elaboration that he “relied on the representations
`identified herein [the Amended Complaint].” (FAC ¶ 72.) His apparent assertion that he read
`the ingredient list—which does not include butter—is separately fatal to his argument that he
`believed the product contained butter.
`4 Even if Plaintiff did not admit to reading the language, it is implausible that he scoured various
`aspects of the label while ignoring the language that described the product features that are
`supposedly most important to him. It is even more implausible given that (1) the text is large
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`8
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 13 of 18 PageID #:61
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`Plaintiff also alleges the statement “natural and artificial flavor” is not linked to the Product’s
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`characterizing flavor (FAC ¶ 32), but the statement “natural and artificial flavor” is directly next
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`to the word “Butter.” Plaintiff acknowledges that the product is butter flavored (FAC ¶ 28), and
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`it is not clear what flavor other than butter the label could be describing as “natural and
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`artificial.” Plaintiff further criticizes the “natural and artificial flavor” statement because it does
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`not say that “the Product does not contain butter” (FAC ¶¶ 33.) However, the label discloses that
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`there is no butter in the spray in several other places, as described above.
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`Fifth, the label expressly compares Crisco® No-Stick Spray to Butter and Oil, and notes
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`that it contains far fewer calories. As discussed below, Plaintiff claims this comparison chart is
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`misleading. But if Plaintiff read this chart, which distinguishes No-Stick Spray from Butter, he
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`could not plausibly have believed No-Stick Spray was butter.
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`Plaintiff also claims that the label does not comply with FDA regulations. (FAC ¶¶ 4, 10,
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`11, 30, 36-38, 42.) This is inaccurate. Further, “[t]o the extent that [Plaintiff] purports to ground
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`her claims in the cited FDA regulations, such reliance is misguided.” Zahora v. Orgain LLC,
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`No. 21 C 705, 2021 WL 5140504, *4 (N.D. Ill. Nov. 4, 2021). Under 21 U.S.C. § 337(a),
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`enforcement of FDA regulations, including 21 C.F.R. § 101.22(i)(2), is “reserved to the federal
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`government alone.” Id. “FDA product labeling regulations are not relevant in determining
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`whether [Plaintiff] has stated a claim under the ICFA.” Id. (dismissing ICFA claim brought by
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`Plaintiff’s lawyer). In any event, the label discloses that the product contains “natural and
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`artificial flavor” in letters not less than one-half the height of the words “Butter” and “No-Stick
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`Spray,” and is therefore compliant with FDA regulations. See 21 C.F.R. § 101.22.
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`and prominently placed after the word “Butter,” and (2) the font is the same color as lettering
`used throughout the front label.
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`9
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 14 of 18 PageID #:62
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`This case is similar to Zahora v. Orgain LLC, in which the Court dismissed a similar
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`complaint filed by Plaintiff’s lawyer that alleged that the words “Vanilla Bean Flavor” on the
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`label of a protein shake would lead consumers to believe that it was flavored with vanilla beans.
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`See Zahora v. Orgain LLC, No. 21 C 705 (VMK), 2021 WL 5140504, at *4. Judge Kendall held
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`that Plaintiff’s allegations were insufficient to state a cause of action because the product label
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`did not state “made with vanilla,” did not promise “all natural” vanilla bean flavor, or that the
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`flavoring was derived mostly, or at all, from authentic vanilla extract. Id. at *4. Further,
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`inspection of the ingredient list showed that the product contained “Natural Flavor,” but did not
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`make a representation that these natural flavors were derived from vanilla beans. Id. (citing
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`Budhani v. Monster Energy Co., 527 F. Supp. 3d [full cite] at 673–74) (“Under these
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`circumstances . . . a reasonable consumer's reading of the label would only lead her to expect a
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`vanilla bean flavor from the Product, however that flavor might be derived. A reasonable
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`consumer would not read into the label what is simply not there: namely, a guarantee that ‘most
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`of the flavor would come from vanilla beans and none would come from artificial flavors.’”).
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`The Court further explained that “[h]ad the Product's label contained words such as ‘made with
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`vanilla beans’ or ‘contains vanilla beans,’ then a reasonable consumer might have been led to
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`believe that vanilla from vanilla extract is the primary or exclusive source of its flavor.” Id.
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`Likewise, here, there is no representation that the No-Stick Spray contains butter, and
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`there are numerous representations that it does not contain butter. Accordingly, Plaintiff has
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`failed to plausibly allege that he was misled.
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`B.
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`Plaintiff’s Alternative Theory, That the Product Is Misleadingly Marketed as
`a Butter Alternative, Also Fails
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`Plaintiff also alleges that he bought the product because he thought it was imitation
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`butter, supposedly because the product does not disclose that it is an imitation of butter. (FAC
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`10
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 15 of 18 PageID #:63
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`¶¶ 36, 37, 67.) Plaintiff contends No-Stick Spray violates various FDA regulations regarding the
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`labeling of imitation product. (Id.) Setting aside the metaphysical quandary presented by this
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`“Schrodinger’s Butter” that in Plaintiff’s mind was somehow both butter and not butter at once,
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`Plaintiff’s allegations are implausible on their face.
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`First, FDA regulations have no bearing on whether a Plaintiff has stated a claim under the
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`ICFA or other fraud-based causes of action. See Orgain, No. 21 C 705, 2021 WL 5140504, at
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`*4. What matters is whether Plaintiff was actually misled by the label, which, for the reasons
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`above and below, he was not.
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`Second, the cited FDA regulations pertain to the labeling of “substitute” foods, but these
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`regulations only apply to products that “resemble” the food they are imitating (like maple syrup
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`and maple-flavored corn syrup). Butter is a creamy solid that makes cooked foods flaky and
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`light. Cooking spray is used to prevent food from sticking to pans and other cookware.
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`11
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 16 of 18 PageID #:64
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`No-Stick Spray is not an ingredient in any conventional sense and is not used in any of the
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`myriad ways that butter is used in preparing food—and Plaintiff does not allege otherwise.
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`Further, the spray is not trying to pass itself off as butter; rather, it identifies itself as No-Stick
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`Cooking Spray with natural and artificial butter flavor and expressly states that it is “Buttery
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`Flavor For Your Food Without The Butter” (emphasis added). Therefore, these allegations
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`also fail to plausibly state a claim.
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`C.
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`The Nutrition Information Comparison Chart Is Not Misleading
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`Plaintiff’s third theory of why he bought the product is a vague claim that the “Product
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`misleads consumers with respect to the [sic] nutrition information relative to butter” (FAC ¶ 43)
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`because it compares the fat and calories in the amounts of No-Stick Spray, butter and margarine,
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`and oil used to grease a 10-inch skillet. As a threshold matter, Plaintiff does not allege he relied
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`on this chart in making his purchasing decision, which is fatal to this claim. And if he did, as
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`noted above, it means Plaintiff could not have believed the product was butter since the chart
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`expressly distinguishes No-Stick Spray and Butter.
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`Plaintiff asserts that “[s]ince the Product is marketed as a butter substitute, the serving
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`size should also reflect more than the limited ‘pan greasing’ application.” (FAC ¶ 47.) This
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`contention makes no sense. The serving sizes provided for the No-Stick Spray, butter and
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`margarine, and oil, in the comparison chart are the amounts of each product that are used to
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`grease a pan. Therefore, the chart provides useful information about the amount of fat and
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`calories each greasing agent would add to a skillet of food. Comparing the caloric content of one
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`tablespoon of cooking spray and one tablespoon of butter, as Plaintiff suggests, would not help
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`consumers make informed purchasing decisions because there are no real-world situations where
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`a consumer would have to choose between using one tablespoon of cooking spray and one
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`tablespoon of butter in a recipe.
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 17 of 18 PageID #:65
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`There are no allegations in the Complaint that the Cooking Spray is marketed for any use
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`other than to grease pans. And there are no allegations in the Complaint, nor sensible reasons,
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`that explain why one would use cooking spray for a “non-greasing application.” Finally, there is
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`no allegation that any of the information in the comparison chart is not true—therefore it cannot
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`be the basis for any of Plaintiff’s causes of action.
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`II.
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`THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE
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`Leave to amend is denied when doing so is futile. Runnion v. Girl Scouts of Greater
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`Chicago & NW Ind., 786 F.3d 510, 520 (7th Cir. 2015). Here, Plaintiff cannot cure the defects in
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`the FAC. No-Stick Spray’s label discloses that it is butter-flavored and contains no butter.
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`Plaintiff has alleged that he read disclosures on the product label showing that the No-Stick
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`Spray did not contain butter. Plaintiff has also alleged that the product is marketed as an
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`alternative to butter. Further, it is implausible that he could have believed that butter could be
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`sprayed out of a canister: butter is solid, not liquid. Given these admissions, this case should be
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`dismissed with prejudice.
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`CONCLUSION
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`For the foregoing reasons, B&G Foods respectfully requests that Plaintiff’s First
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`Amended Complaint be dismissed with prejudice.
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`Case: 1:21-cv-05104 Document #: 15 Filed: 02/10/22 Page 18 of 18 PageID #:66
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`Dated: February 10, 2022
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`Respectfully submitted,
`BRAUNHAGEY & BORDEN LLP
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`Pratik K. Raj Ghosh, Esq. (ARDC: 6326943)
`ghosh@braunhagey.com
`David Kwasniewski, Esq. (Pro Hac Vice Forthcoming)
`kwasniewski@braunhagey.com
`Robert Petraglia, Esq. (Pro Hac Vice Forthcoming)
`petraglia@braunhagey.com
`BRAUNHAGEY & BORDEN LLP
`351 California Street, Tenth Floor
`San Francisco, CA 94104
`Telephone: (415) 599-0210
`Facsimile: (415) 599-0210
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`Attorneys for Defendant B&G Foods, Inc.
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