Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 1 of 19 PageID #:127
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`)
`CHARLES STROW, individually and
`)
`on behalf of all others similarly situated,
`)
`
`
`
`
`
`
`)
`
`
`Plaintiff,
`
`
`)
`
`
`
`
`
`
`)
`
`v.
`
`
`
`
`)
`
`
`
`
`
`
`)
`B&G FOODS, INC.,
`
`
`)
`
`
`
`
`
`
`)
`
`
`Defendant.
`
`
`____________________________________)
`
`Case No. 21-cv-5104
`
`Hon. Steven C. Seeger
`
`
`
`
`
`
`
`
`MEMORANDUM OPINION AND ORDER
`
`
`
`Butter is magic on a stick. As this Court’s grandmother used to say, butter makes nothing
`
`worse, and makes almost everything better. Spread on a fresh baguette, melted over mashed
`
`potatoes, or baked into a flaky croissant, butter makes everything it touches turn to golden
`
`goodness. It’s the Midas of condiments.
`
`Few words in the English language are more alluring than “butter,” and for good reason.
`
`Most of us have a hard time resisting anything associated with butter. And, when it comes to
`
`promoting food, marketers want to be on Team Butter. Sex sells, but butter is a close second.
`
`This case is about the allure of butter, and the deception of fake butter products. Charles
`
`Strow bought “Butter No-Stick Spray,” sold under the Crisco brand by B&G Foods. To his
`
`surprise, the product – a non-stick cooking spray – did not contain any butter. He bought a can
`
`of butterless butter spray.
`
`Instead of going back to the grocery store and getting his money back, Strow went to the
`
`federal courthouse. He sued B&G for deceptive advertising. B&G, in turn, moved to dismiss.
`
`B&G thinks that it was obvious that the butter spray was butterless.
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 2 of 19 PageID #:128
`
`
`
`
`
`For the following reasons, the Court denies Defendant’s motion to dismiss.
`
`Background
`
`At the motion to dismiss stage, the Court must accept as true the well-pleaded allegations
`
`of the complaint. See Lett v. City of Chicago, 946 F.3d 398, 399 (7th Cir. 2020). The Court
`
`“offer[s] no opinion on the ultimate merits because further development of the record may cast
`
`the facts in a light different from the complaint.” Savory v. Cannon, 947 F.3d 409, 412 (7th Cir.
`
`2020).
`
`
`
`Before getting into Strow’s purchase of a butterless butter spray, the Court will start with
`
`the legal landscape for the protection of consumers when it comes to labeling.
`
`
`
`Consumers want to know that they are getting what they think they’re buying. That’s
`
`especially important when consumers put the products inside their bodies.
`
`To that end, federal and state regulations prohibit false and deceptive practices when
`
`labeling food and beverages. See Am. Cplt., at ¶ 4 (Dckt. No. 7). The Illinois Consumer Fraud
`
`and Deceptive Business Practices Act (“ICFA”) also protects consumers when they buy products
`
`like B&G’s spray. Id. at ¶ 5.
`
`The integrity of butter is heavily guarded with regulations. People have a love affair with
`
`butter. And people want to know if they’re getting the real thing. Congress established a
`
`definition of butter because consumers value it so much. Id. at ¶ 7. It’s the only food with its
`
`own statutory definition. Id. at ¶ 6; see also 21 U.S.C. § 321a.
`
`
`
`Butter is so popular that it has inspired imposters. Food companies have developed
`
`synthetic, butter-like products made from plants and animal fats, hoping to expropriate the allure
`
`of butter. See Am. Cplt., at ¶ 8 (Dckt. No. 7). The knock-offs include familiar kitchen staples
`
`like vegetable oils and margarine. Id. at ¶ 9. Manufacturers continually try to sell imitation
`
`
`
`2
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 3 of 19 PageID #:129
`
`products by giving consumers the impression that they contain butter. Id. But in reality, the
`
`products contain lower-quality and cheaper vegetable oils, not butter. Id.
`
`
`
`The FDA wants a readily navigable butter landscape. It has long provided guidance to
`
`reflect consumer appreciation for butter and dairy. Id. at ¶ 10. Agency compliance guidelines
`
`state that the FDA considers false and misleading any product labeled “Butter _____” or using
`
`the word “butter” in conjunction with its name “unless all of the shortening ingredient is
`
`butter.” See Food & Drug Admin., Compliance Policy Guide (CPG) § 505.200: “Butter”
`
`Featured in Product Name (Mar. 8, 1988); see Am. Cplt., at ¶ 11 (Dckt. No. 7).
`
`
`
`The Complaint alleges that consumers prefer butter to phony alternatives, for several
`
`reasons. See Am. Cplt., at ¶ 12 (Dckt. No. 7). For one, butter is natural. It is made from
`
`churning cow’s milk, so it is rich in nutrients, like calcium, Vitamin A, and Vitamin D. Id. at
`
`¶ 17. We’re mammals – we’re hard-wired to like dairy – and butter comes from mammals.
`
`Substitute products rely on ingredients that are not cow-made. Substitutes require
`
`processes called fat hydrogenation (which helps solidify oils) and interesterification (which can
`
`turn oils into solid and semi-solid products by combining them with other solid fats). Id. at
`
`¶¶ 14–16. The processes are as unnatural as the words sound. But butter is all natural, and “does
`
`not contain the trans fats of vegetable oils.” Id. at ¶ 13.
`
`Taste matters, too. Butter has a creamy, sweet taste. Vegetable oils, on the other hand,
`
`do not. Id. at ¶¶ 18–19. And although vegetable oils are “refined, bleached and deodorized” to
`
`neutralize their taste, the taste cleansing doesn’t always work. Id. at ¶ 19. Sometimes vegetable
`
`oils oxidize, which reverts the flavor back to the original crude oil before it was processed. Id. at
`
`¶¶ 20–21. Far from buttery, oxidized vegetable oil can taste “beany,” powdery,” or “fishy.” Id.
`
`at ¶ 22.
`
`
`
`3
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 4 of 19 PageID #:130
`
`People can taste the difference between butter and oil. If there was a “Pepsi Challenge”
`
`for butter vs. oil, it wouldn’t be close.
`
`The differences also matter in the kitchen. Id. at ¶ 26. In food parlance, the term
`
`“buttery” is a compliment. Id. at ¶ 25. Think of your favorite breads and pastries. Cooking with
`
`butter creates a flaky texture that is softer and less dense than anything vegetable oils can
`
`achieve. Id. Far from “buttery,” vegetable oils contribute to a waxy mouthfeel and leave an
`
`unpleasant aftertaste. Id.
`
`Every self-respecting baker knows the difference between butter and oil, in taste and in
`
`performance. Butter just tastes different – better – than oil. Butter performs differently, too. Oil
`
`is 100% fat and 0% water, but butter is only 80% fat and has 15% water (give or take). The
`
`presence of water strengthens the gluten in flour, which impacts the tenderness and density of
`
`whatever you take out of the oven. Water also evaporates during the baking process, creating
`
`butter’s inimitable flakey texture. The water turns to steam when it heats up in the oven, creating
`
`a leavening effect in baked goods. Watch generally America’s Test Kitchen, How to Make the
`
`Flakiest Biscuits Ever, YouTube (May 15, 2020), https://youtu.be/oUkmTHA7AEw?t=91.
`
`This case involves artificial butter. Defendant B&G Foods manufactures, labels,
`
`markets, and sells a product called “Butter No-Stick Spray.” See Am. Cplt., at ¶ 1 (Dckt. No. 7).
`
`Plaintiff Charles Strow bought a can of B&G’s butter spray on more than one occasion between
`
`July and August 2021. Id. at ¶ 68. He paid at least $3.49 per 6 ounces. Id. at ¶¶ 53, 71. He
`
`alleges that B&G’s representations on the label are misleading because the product contains no
`
`butter and instead uses artificial butter ingredients.
`
`
`
`4
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 5 of 19 PageID #:131
`
`To understand Strow’s allegations, the Court turns to B&G’s Butter No-Stick Spray. The
`
`product looks like this:
`
`As the reader can see, the largest word on the label is “Butter.” Id. at ¶ 2. It is front and
`
`center, in big font. And notice the stacking of the text. “Butter” appears on top (as it often
`
`does), above “No-Stick Spray.” “Butter” is bigger, in a different font. It pops.
`
`Notice that the label uses a noun, not an adjective. The front of the spray can says
`
`“Butter,” not “Buttery.” The noun communicates that it is butter, not that it has a butter-like
`
`attribute.
`
`Not far away is the image of a pancake, sizzling in a skillet, with a pat of butter plopped
`
`right on top. Id. at ¶ 3. It’s a yellow can, too, shaped kind of like a stick of butter. It doesn’t
`
`take too much imagination to think that the good people at Crisco have somehow figured out
`
`how to put a nozzle on a stick of butter itself.
`
`5
`
`
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 6 of 19 PageID #:132
`
`The product’s front label also states that it contains “Natural & Artificial Flavor.” Id. at
`
`¶ 29. That text appears immediately next to the product’s “Butter” title. But it is smaller than
`
`the “Butter” text, and in a hazy font. Id. at ¶¶ 30–32. It is less noticeable.
`
`To be fair, the front of the can also says “0g Trans Fat,” “For Fat Free Cooking,” “0g Sat
`
`Fat,” and “0 Calories.” The text is small print, so maybe an average consumer would have
`
`trouble seeing it. Still, anyone who spots that text should have a moment of pause. Butter isn’t
`
`lacking in fat and calories. That’s why it’s so good. It could suggest that Crisco had created a
`
`miracle: fat-free, calorie-free butter. But that’s an issue for a later day.
`
`The product’s back label, reproduced in the images below, provides more information.
`
`Id. at ¶ 27. It includes a short list of ingredients. Id. The product contains canola oil, soy
`
`lecithin, natural and artificial flavor, dimethyl silicone, beta carotene, and propellant – but no
`
`butter. Id. In fact, the product has none of the ingredients that Congress requires in its statutory
`
`definition of butter. Id. at ¶ 40. Butter was supposed to be the star of the show, but it is entirely
`
`missing from the stage.
`
`
`
`6
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 7 of 19 PageID #:133
`
`In fact, the back label touts the absence of butter from the product. A bolded font reads
`
`“Buttery Flavor For Your Food Without The Butter.” See Def.’s Mtn. to Dismiss, at 3 (Dckt.
`
`No. 15). Notice the dairy dissonance: the front of the can said “Butter,” but the back of the can
`
`said “Without The Butter.” It’s butter without the butter.
`
` Below that phrase, the back label highlights the spray’s versatility. Using the spray can
`
`will allow a hungry consumer to do all sorts of things that a cook could do with butter.
`
`Examples include making waffles, eggs, toast, pancakes, grilled cheese sandwiches, stir fry, and
`
`whatever else the aspiring cook can dream up. Id. at 4.
`
`Finally, the back label provides nutritional information, comparing the spray to butter and
`
`margarine. See Am. Cplt., at ¶¶ 44, 47 (Dckt. No. 7). The serving size of butter and margarine
`
`is one tablespoon, or 14 grams. But the serving size of B&G’s spray is only 0.25 grams,
`
`meaning the amount of spray that would shoot out in one second. Id. at ¶ 46. The point seems to
`
`be that, when greasing your pans, you could use a little spray, or a lot more butter.
`
`B&G sells other no-stick sprays, like an olive oil spray. Id. at ¶ 41. But unlike its
`
`butterless butter spray, B&G’s olive oil spray actually contains its namesake ingredient. Id. And
`
`competitor products (i.e., other butter-spray products) prominently feature “butter flavored”
`
`identifications. Id. at ¶ 42 (emphasis added).
`
`Strow alleges that he expected the “Butter No-Stick Spray” to contain butter. Id. at
`
`¶¶ 69–72. He thought he was getting a can of sprayable butter when he bought a can of butter
`
`spray.
`
`Strow was disappointed to learn that it did not include butter. Id. at ¶ 73. He doesn’t
`
`give the backstory about his disappointment. Maybe he had heated up the waffle iron, and was
`
`ready and raring to go, until he discovered the absence of butter in the can, and had to go with
`
`
`
`7
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 8 of 19 PageID #:134
`
`Plan B for breakfast. In any event, Strow claims that the product’s packaging misled him and
`
`other consumers.
`
`Strow claims that he never would have bought the product if he had known the butterless
`
`truth – or at least, he would have paid less. Id. at ¶ 73 (“Plaintiff would not have purchased the
`
`Product if he knew the representations were false and misleading.”); id. at ¶ 75 (“Plaintiff . . .
`
`would not have paid as much absent Defendant’s false and misleading statements and
`
`omissions.”).
`
`According to the complaint, reasonable consumers rely on a manufacturer to describe a
`
`product, especially when distinguishing the product from alternatives. Id. at ¶ 49. As Strow sees
`
`it, B&G used deceptive practices to sell more of the spray than it otherwise would have sold, and
`
`at a higher price. Id. at ¶ 51. The complaint alleges that other reasonable consumers would not
`
`have purchased the butterless butter spray, either. Id. at ¶¶ 50, 52.
`
`Strow alleges that he had a choice between B&G’s spray and other sprays that were
`
`lower-priced or that “did not misrepresent their attributes.” Id. at ¶ 74. On multiple occasions,
`
`he chose B&G’s spray. Id. Maybe the taste didn’t bother him, because he kept buying it.
`
`In the future, Strow hopes to purchase the product again. But he wants assurances that
`
`the product’s representations are consistent with the fact that there is no real butter in the spray.
`
`Id. at ¶ 76. So, he now knows that the spray butter is butterless, but he wants the company to tell
`
`him that it contains no butter.
`
`Disappointed with his purchase, Strow filed suit against B&G. See Cplt. (Dckt. No. 1).
`
`He later amended his complaint. See Am. Cplt. (Dckt. No. 7). He brings this putative class
`
`action on behalf of himself and “[a]ll persons in the State of Illinois who purchased the Product
`
`during the statute of limitations for each cause of action alleged.” Id. at ¶ 77.
`
`
`
`8
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 9 of 19 PageID #:135
`
`Plaintiff’s complaint contains six counts: (1) a violation of the Illinois Consumer Fraud
`
`and Deceptive Business Practices Act; (2) a violation of comparable statutes from other states;
`
`(3) breaches of express and implied warranties of merchantability, and a violation of the
`
`Magnuson Moss Warranty Act; (4) negligent misrepresentation; (5) fraud; and (6) unjust
`
`enrichment. Id. at ¶¶ 85–111.
`
`B&G moves to dismiss. See Def.’s Mtn. to Dismiss (Dckt. No. 15).
`
`Legal Standard
`
`A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
`
`the merits of the case. See Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
`
`1520 (7th Cir. 1990). In considering a motion to dismiss, the Court must accept as true all well-
`
`pleaded facts in the complaint and draw all reasonable inferences in the plaintiff’s favor. See
`
`AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive, the complaint must
`
`give the defendant fair notice of the basis for the claim, and it must be facially plausible. See
`
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
`
`(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
`
`court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
`
`Iqbal, 556 U.S. at 678.
`
`Analysis
`
`Strow claims that the labeling on B&G’s spray was false and intended to deceive
`
`consumers in violation of the ICFA and comparable statutes from other states, state law express
`
`and implied warranties of merchantability, and the Magnuson Moss Warranty Act. He also
`
`claims that the labeling resulted in tortious negligent misrepresentation, common-law fraud, and
`
`unjust enrichment.
`
`
`
`9
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 10 of 19 PageID #:136
`
`B&G makes one overarching argument that hovers over all of the claims. The company
`
`argues that the complaint fails to adequately allege that the product’s label would deceive a
`
`reasonable consumer. See Def.’s Mtn. to Dismiss, at 5 (Dckt. No. 15). According to B&G,
`
`“[b]ecause Plaintiff’s claims are all based on the same facts, they all fail together.” Id. (citing
`
`Zahora v. Orgain LLC, 2021 WL 5140504 (N.D. Ill. 2021)). The company raises no alternative
`
`arguments to challenge the other claims. So the Court will consider only whether Plaintiff has
`
`plausibly alleged a claim under the ICFA.
`
`To state a claim under the ICFA, Strow must allege: (1) a deceptive act or practice, (2)
`
`an intent for the consumer to rely on the deception, (3) the occurrence of the deception in the
`
`course of conduct involving trade or commerce, and (4) actual damage that was (5) proximately
`
`caused by the deception. See Davis v. G.N. Mortg. Corp., 396 F.3d 869, 883 (7th Cir. 2005); see
`
`also Zahora, 2021 WL 5140504, at *3.
`
`To satisfy step one, Strow must plead facts plausibly showing a deceptive act or practice.
`
`“[A] statement is deceptive if it creates a likelihood of deception or has the capacity to deceive.”
`
`Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 938 (7th Cir. 2011). Specifically, Strow must
`
`plausibly allege that the statement was “likely to deceive a reasonable consumer.” Beardsall v.
`
`CVS Pharmacy, Inc., 953 F.3d 969, 972 (7th Cir. 2020). And because every claim in Plaintiff’s
`
`complaint requires proof of a deceptive act or practice, the entire complaint rises or falls with
`
`step one. No deception, no claims.
`
`This Court may dismiss an ICFA claim at the pleading stage if the statement at issue is
`
`not misleading as a matter of law. See Bober, 246 F.3d at 940. But the Seventh Circuit has
`
`cautioned that courts should not readily jump to conclusions at this stage. The Seventh Circuit
`
`favors a “practical and fact-intensive approach.” Bell v. Publix Super Mkts., Inc., 982 F.3d 468,
`
`
`
`10
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 11 of 19 PageID #:137
`
`478 (7th Cir. 2020). More specifically, this Court may dismiss a claim at the pleading stage only
`
`“where plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of
`
`labels or other advertising.” Id. at 477–78; see also Bober, 246 F.3d at 940 (dismissing a claim
`
`of deceptive advertising because the product’s label “eliminates any possibility of deception” and
`
`“can only be read” in a nondeceptive way).
`
`“The statute allows a plaintiff to premise her claim on either deceptive conduct or unfair
`
`conduct (or both), but ‘the two categories have different pleading standards.’” See Benson v.
`
`Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019) (citation omitted). “If
`
`the claim rests on allegations of deceptive conduct, then [Federal Rule of Civil Procedure]
`
`9(b) applies and the plaintiff must plead with particularity the circumstances constituting fraud.”
`
`See Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730, 738 (7th Cir. 2019).
`
`Alleging a fraud claim is a tall order. Strow must identify the “who, what, when, where,
`
`and how” of the alleged deception. Id.
`
`The basic issue is whether it is unreasonable as a matter of law to believe that a can of
`
`butter spray contains butter. B&G argues that the label on the butterless butter spray is not
`
`misleading, and no reasonable consumer could think otherwise.
`
`I.
`
`The Label
`
`B&G basically argues that Strow is relying on an unreasonable reading of the label on its
`
`can of spray butter. Boiling it down, B&G thinks that it was unreasonable to read the word
`
`“Butter” to mean butter. B&G points to the nature of butter itself, the product’s back label, and
`
`the product’s front label. See Def.’s Mtn. to Dismiss, at 7–12 (Dckt. No. 15).
`
`
`
`11
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 12 of 19 PageID #:138
`
`The Court sees things differently, literally and figuratively. If B&G didn’t want
`
`consumers to think that the can contained butter, one wonders why it said “Butter,” front and
`
`center.
`
`A.
`
`The Properties of Butter
`
`B&G begins with first principles about butter. At room temperature, butter is a solid.
`
`Solids can’t be sprayed. But the spray can said “Butter No-Stick Spray.” Given this “factual
`
`impossibility,” B&G argues that no consumer could reasonably believe that a sprayable product
`
`contains butter. Id. at 6. Spraying butter is impossible, and it is unreasonable to expect the
`
`impossible.
`
`B&G compares butter to unrefined sugar. See Ibarrola v. Kind, LLC, 83 F. Supp. 3d 751
`
`(N.D. Ill. 2015). Ibarrola involved a granola product advertised as containing “no refined
`
`sugars.” Id. at 754. Plaintiff, a granola purchaser, claimed that she had understood “no refined
`
`sugars” to mean that the product “contain[ed] only naturally occurring, unrefined sugar” – i.e.,
`
`sugar that had not been refined at all. Id. at 755–56.
`
`The court held that no reasonable consumer could be deceived by the product’s statement
`
`because “sugar cane in its natural state is a grass” that is “indigestible.” Id. at 756–58. Raw
`
`sugar is not suitable for human consumption without at least some refinement. So no reasonable
`
`consumer could think that the sugar in the product was in its natural, completely unrefined state.
`
`Id. at 757. Plaintiff’s interpretation of the label was unreasonable.
`
`According to B&G, it is equally implausible that a consumer could think that butter
`
`comes in a spray can. Butter is a solid at room temperature. And no reasonable consumer could
`
`think that a solid gets sprayed out of a nozzle. See Def.’s Mtn. to Dismiss, at 7 (Dckt. No. 15).
`
`
`
`12
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 13 of 19 PageID #:139
`
`Butter and sugar make a good pairing, but here, the two don’t fit together. Most people
`
`have seen melted butter. And melted butter is a liquid. So, most people have seen butter in
`
`liquid form. Maybe the liquid butter isn’t at room temperature – give it time, let it cool down,
`
`and it will transform into a solid. Still, butter in a liquid form exists.
`
`If you asked your Average Joes on the street if butter can be a liquid, plenty of them
`
`probably would say yes. Anyone who has ever enjoyed crab legs or popcorn will probably have
`
`a quick response. At the very least, it is not so far outside the realm of possibility that it fails to
`
`state a claim.
`
`The parties engage in a long debate about the how-to’s of converting butter into liquid.
`
`Plaintiff believes that butter can become a liquid at room temperature by adding the ingredient
`
`“butteroil or anhydrous milk fat.” See Pl.’s Resp., at 2 (Dckt. No. 25). B&G responds that the
`
`complaint makes no reference to anhydrous milk fat, so anhydrous milk fat can’t come to the
`
`complaint’s rescue. See Def.’s Reply, at 6 (Dckt. No. 27). Then, B&G argues that “[b]ecause
`
`anhydrous milk fat is not butter, Plaintiff’s new argument that he thought the product was made
`
`from anhydrous milk fat is just an admission that he thought the product was not composed of
`
`butter.” Id.
`
`The debate about the transformative abilities of butter can wait. Maybe butter cannot
`
`remain a liquid at room temperature without the addition of some additive, such as butteroil or
`
`anhydrous milk fat. But for now, Strow’s reading of the spray can is not so unreasonable that he
`
`must lose, here and now.
`
`Reasonable consumers are not chemists. The law does not expect consumers to be well-
`
`versed in butter’s thermodynamic properties. See Rudy v. Fam. Dollar Stores, Inc., 2022 WL
`
`345081, at *4 (N.D. Ill. 2022) (“What matters most is how real consumers understand and react
`
`
`
`13
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 14 of 19 PageID #:140
`
`to the advertising.”) (quoting Bell, 982 F.3d at 476); see also Lederman v. Hershey Co., 2022
`
`WL 3573034, at *3 (N.D. Ill. 2022) (“While Plaintiff may have an acute sense of fudge, is the
`
`reasonable consumer as discerning? Not likely.”).
`
`Life experience matters most to the reasonable consumer. Most people have probably
`
`melted butter in their microwaves. And when they were done, they probably didn’t believe that
`
`they had achieved the impossible.
`
`Maybe, if they stopped to think about it, consumers would realize that butter is a solid at
`
`room temperature. Still, it is not “unreasonable or fanciful” for a consumer to believe that butter
`
`can exist in liquid form at room temperature. See Bell, 982 F.3d at 477. It is not as if the spray
`
`can told consumers that it could help them fly.
`
`B.
`
`The Back of the Can
`
`Next, B&G turns the bottle around and points to language confirming that its product
`
`contained no butter. In its view, a consumer could not reasonably believe that the can contained
`
`butter after reading the back label.
`
`The back of the can includes the following statement: “Buttery Flavor For Your Food
`
`Without The Butter.” 1 See Def.’s Mtn. to Dismiss, at 7, 11 (Dckt. No. 15). Notice the shift from
`
`
`1 Plaintiff argues that the Court may not consider this statement because the Amended Complaint “does
`not reference” that particular part of the label. See Pl.’s Resp., at 2 (Dckt. No. 25). That is incorrect. In
`considering a motion to dismiss, a court may consider “documents attached to a motion to dismiss . . . if
`they are referred to in the plaintiff’s complaint and are central to his claim.” Brownmark Films, LLC v.
`Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (“[T]he incorporation-by-reference doctrine provides
`that if a plaintiff mentions a document in his complaint, the defendant may then submit the document to
`the court without converting defendant’s 12(b)(6) motion to a motion for summary judgment.”). Here,
`Plaintiff refers to both sides of the label in his complaint. See Am. Cplt., at ¶¶ 2, 27 (Dckt. No. 7). And
`even where a document is not incorporated by reference, a court may consider it on a motion to dismiss if
`it is integral to the complaint. See Gociman v. Loyola Univ. of Chicago, 41 F.4th 873, 881 (7th Cir.
`2022). Plaintiff’s complaint is all about the label. Plaintiff may not attempt to “evad[e] dismissal under
`Rule 12(b)(6) simply by failing to attach to his complaint a document that proves his claim has no merit.”
`Brownmark Films, 682 F.3d at 690 (cleaned up); see also Campbell v. Drink Daily Greens, LLC, 2018
`WL 4259978, at *2 (E.D.N.Y. 2018) (taking judicial notice of portions of a label that plaintiff had failed
`to include in the complaint).
`
`
`
`14
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 15 of 19 PageID #:141
`
`a noun to an adjective. The front of the can says that it contains “Butter.” The back of the can
`
`says that the contents add “buttery” flavor.
`
`Not far below, the label compares the spray to butter and oil. It shows that the spray has
`
`fewer calories. Id. at 9. And the list of ingredients confirms that it contains no butter. See Am.
`
`Cplt., at ¶ 27 (Dckt. No. 7) (listing canola oil, soy lecithin, natural and artificial flavor, dimethyl
`
`silicone, beta carotene, and propellant).
`
`B&G argues that the Court should take this back-label information into account. The
`
`company observes that all information that is available to a consumer is fair game when deciding
`
`whether a product is deceptive. See Def.’s Mtn. to Dismiss, at 7 (Dckt. No. 15) (citing Davis,
`
`396 F.3d at 884); see also Bell, 982 F.3d at 477 (“We stand by the general principle that
`
`deceptive advertising claims should take into account all the information available to consumers
`
`and the context in which that information is provided and used.”).
`
`Here, according to B&G, a consumer only needs to look at the back label to realize that
`
`there’s no butter in the product. And the company notes that Strow claims to have read the
`
`nutrition chart, which is printed on the back label. See Def.’s Mtn. to Dismiss, at 7–9 (Dckt.
`
`No. 15); see also Am. Cplt., at ¶¶ 43–47 (Dckt. No. 17). If that’s the case, then he could not
`
`plausibly have believed that the spray contained butter. Id.
`
`Maybe so. But the Seventh Circuit has limited the ability of truthful information on a
`
`product’s back label to immunize deceptive advertising contained on the product’s front label.
`
`See Bell, 982 F.3d at 476. In Bell, the Seventh Circuit held that a plaintiff’s claim survives a
`
`motion to dismiss “if [he has] plausibly alleged that the [defendant’s] front labels likely lead a
`
`significant portion of reasonable consumers to falsely believe something that the back labels
`
`belie.” Id. at 476.
`
`
`
`15
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 16 of 19 PageID #:142
`
`Bell involved a label that read “100% Grated Parmesan Cheese.” Id. But the product
`
`contained other ingredients, too: cellulose powder and potassium sorbate. Plaintiffs claimed that
`
`many consumers interpreted the “100%” label as applying to all three words (i.e., the product
`
`was 100% cheese). Id. at 476–77. The Seventh Circuit reversed the dismissal of plaintiffs’
`
`complaint, even though the back label accurately listed those non-cheese ingredients.
`
`The Seventh Circuit held that “the reasonable consumer standard does not presume, at
`
`least as a matter of law, that reasonable consumers will test prominent front-label claims by
`
`examining the fine print on the back label.” Id. at 477. So, where a product’s front label is
`
`ambiguous, its back label won’t save the day at the pleading stage.
`
`Anyone who has quickly picked up a can of soup from a grocery-store shelf will know
`
`why. Consumers don’t study grocery labels like books in a library. See id. at 476 (“Many
`
`reasonable consumers do not instinctively parse every front label or read every back label before
`
`placing groceries in their carts.”). And the law of the Seventh Circuit doesn’t expect them to.
`
`Here, the product’s front label dooms B&G’s motion. The largest word on the can
`
`(besides the “Crisco” logo) is “Butter.” See Am. Cplt., at ¶ 2 (Dckt. No. 7). The only image on
`
`the product depicts a melting pat of butter atop pancakes in a skillet. A consumer pushing his
`
`cart down the aisle confronts only this imagery and labeling during the few seconds spent
`
`deciding whether to purchase the product.
`
`Strow claims that he and other consumers interpret that label as promising actual butter in
`
`the product. Id. at ¶ 39. That claim is not an “unreasonable or fanciful interpretation” of the
`
`label. See Bell, 982 F.3d at 477; see also id. at 493 (Kanne, J., concurring) (“It’s well settled that
`
`a label is not deceptive as a matter of law when the plaintiff’s interpretation is so facially
`
`illogical, implausible, or fanciful that no reasonable consumer would think it – and that dismissal
`
`
`
`16
`
`

`

`Case: 1:21-cv-05104 Document #: 34 Filed: 09/30/22 Page 17 of 19 PageID #:143
`
`is warranted in those circumstances.”). If the product’s labeling looks like melted butter and
`
`says “Butter,” it’s not unreasonable for a consumer to believe that it contains butter. Why else
`
`call it “Butter”?
`
`Only when inspecting the back label would a consumer realize that “Butter” might not
`
`mean actual butter.2 But again, the Seventh Circuit shies away from allowing back-label
`
`disclaimers to exonerate front-label deceptions as a matter of law. See id. at 477 (majority
`
`opinion) (“The ambiguity rule for front-label claims would, we fear, encourage deceptive
`
`advertising and labeling.”). Product manufacturers should not say one thing to a consumer on
`
`the front while crossing their fingers behind their back (label). See id.; see also Dumont v. Reily
`
`Foods Co., 834 F.3d 35, 41 (1st Cir. 2019); Mantikas v. Kellogg Co., 910 F.3d 633, 638–39 (2d
`
`Cir. 2018); Williams v. Gerber Prods. Co., 552 F.3d 934, 939 (9th Cir. 2008).
`
`C.
`
`The Front of the Can
`
`B&G ends where it all began: the front of the can.
`
`The complaint points to the small hazy text next to the word “Butter.” It reads “Natural
`
`& Artificial Flavor.” See Def.’s Mtn. to Dismiss, at 8 (Dckt. No. 15); Am. Cplt., at ¶ 29 (Dckt.
`
`No. 7). It is smaller than the “Butter” lettering, and it i