Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 1 of 22 Page ID #33
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF ILLINOIS
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`Case No. 3:21-cv-00525-SPM
`Hon. Stephen P. McGlynn
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`))
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`)
`)
`)
`)
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`)
`)
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`Deborah Floyd, individually and on behalf of all
`others similarly situated,
`Plaintiff,
`
`v.
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`Pepperidge Farm, Incorporated,
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`Defendant.
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`MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT PEPPERIDGE FARM,
`INCORPORATED’S MOTION TO DISMISS
`
`Dale J. Giali
`Keri E. Borders (admitted pro hac vice)
`MAYER BROWN LLP
`350 South Grand Avenue, 25th Floor
`Los Angeles, California 90071-1503
`Telephone: (213) 229-9500
`Facsimile: (213) 625-0248
`dgiali@mayerbrown.com
`kborders@mayerbrown.com
`
`Attorneys for Defendant Pepperidge Farm, Incorporated
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 2 of 22 Page ID #34
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`TABLE OF CONTENTS
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`Page(s)
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`INTRODUCTION .............................................................................................................. 1
`
`FACTUAL AND PROCEDURAL BACKGROUND ....................................................... 3
`
`The “Golden Butter Cracker” Product .................................................................... 3
`A.
`Plaintiff’s Allegations ............................................................................................. 5
`B.
`THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE ............................. 6
`
`A.
`B.
`
`C.
`D.
`
`Legal Standard For Motion To Dismiss.................................................................. 6
`Plaintiff Has Not Plausibly Alleged That The Product Name “Golden Butter”
`Crackers Is Deceptive ............................................................................................. 7
`The Complaint Fails Rule 9(b)’s Heightened Pleading Standard ......................... 12
`Plaintiff’s Tag-Along Claims Are Not Well Pleaded ........................................... 12
`The Complaint Does Not State A Claim For Breach Of Warranty . .................... 12
`The Complaint Does Not State A Claim For Negligent Misrepresentation . ....... 14
`The Complaint Does Not State A Claim For Fraud . ............................................ 14
`The Complaint Does Not State A Claim For Unjust Enrichment . ....................... 14
`Plaintiff Lacks Standing To Sue For Injunctive Relief ......................................... 15
`E.
`CONCLUSION ................................................................................................................. 15
`
`I.
`
`II.
`
`III.
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`IV.
`
`i
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 3 of 22 Page ID #35
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Anthony v. Country Life Mfg, LLC,
`70 F. App’x 379 (7th Cir. 2003) ..............................................................................................12
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................6
`
`Backus v. Gen. Mills, Inc.,
`122 F. Supp. 3d 909 (N. D. Cal. 2015) ....................................................................................13
`
`Barreto v. Westbrae Natural, Inc.,
`518 F. Supp. 3d 795 (S.D.N.Y. 2021)..........................................................................10, 13, 15
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...............................................................................................................6, 9
`
`Bell v. Publix Super Mkts., Inc.,
`982 F.3d 468 (7th Cir. 2020) ...............................................................................................9, 10
`
`Bober v. Glaxo Wellcome PLC,
`246 F.3d 934 (7th Cir. 2001) .....................................................................................................7
`
`Bohn v. Boiron, Inc.,
`2013 WL 3975126 (N.D. Ill. Aug. 1, 2013) ............................................................................15
`
`Brodsky v. Aldi Inc.,
`2021 WL 4439304 (N.D. Ill. Sept. 28, 2021) ..........................................................................10
`
`Camasta v. Jos. A. Bank Clothiers, Inc.,
`761 F.3d 732 (7th Cir. 2014) ...................................................................................................15
`
`City of Los Angeles v. Lyons,
`461 U.S. 95 (1983) ...................................................................................................................15
`
`Cosgrove v. Or. Chai, Inc.,
`520 F. Supp. 3d 562 (S.D.N.Y. 2021)......................................................................................10
`
`Dashnau v. Unilever Mfg. (US), Inc.,
`2021 WL 1163716 (S.D.N.Y. Mar. 26, 2021) .........................................................................10
`
`Davis v. Hain Celestial Grp., Inc.,
`297 F. Supp. 3d 327 (E.D.N.Y. 2018) .....................................................................................11
`
`ii
`
`

`

`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 4 of 22 Page ID #36
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`Fuchs v. Menard, Inc.,
`2017 WL 4339821 (N.D. Ill. Sept. 29, 2017) ..........................................................................11
`
`Galanis v. Starbucks Corp.,
`2016 WL 6037962 (N.D. Ill. Oct. 14, 2016)..................................................................7, 11, 12
`
`Guajardo v. Skechers USA, Inc.,
`2021 WL 4302532 (C.D. Ill. Sept. 21, 2021) ............................................................................7
`
`Gubala v. CVS Pharmacy, Inc.,
`2015 WL 3777627 (N.D. Ill. June 16, 2015) ...........................................................................11
`
`Harris v. Mondelēz Global LLC,
`2020 WL 4336390 (E.D.N.Y. July 28, 2020) ..........................................................................10
`
`Ibarrola v. Kind, LLC,
`83 F. Supp. 3d 751 (N.D. Ill. 2015) ...............................................................................7, 12, 15
`
`Kamara v. Pepperidge Farm, Incorporated,
`No. 1:20-cv-09012 (S.D.N.Y.)...........................................................................................2, 3, 5
`
`MacNeil Auto. Prods. Ltd. v. Cannon Auto. Ltd.,
`715 F. Supp. 2d 786 (N.D. Ill. 2010) .......................................................................................13
`
`Manchouck v. Mondelēz Int’l Inc.,
`2013 WL 5400285 (N.D. Cal. Sept. 26, 2013) ........................................................................11
`
`Manley v. Hain Celestial Group, Inc.,
`417 F. Supp. 3d 1114 (N.D. Ill. 2019) ...............................................................................13, 14
`
`Parrot v. Family Dollar, Inc.,
`2018 WL 2118195 (N.D. Ill. May 8, 2018) .............................................................................13
`
`Pichardo v. Only What You Need, Inc.,
`2020 WL 6323775 (S.D.N.Y. Oct. 27, 2020) ......................................................................2, 10
`
`Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. v. Walgreen Co.,
`631 F.3d 436 (7th Cir. 2011) ...............................................................................................6, 12
`
`Reid v. Unilever U.S., Inc.,
`964 F. Supp. 2d 893 (N.D. Ill. 2013) .........................................................................................7
`
`Reyes v. Crystal Farms Refrigerated Distrib. Co.,
`2019 WL 3409883 (E.D.N.Y. July 26, 2019) ..................................................................8, 9, 11
`
`Sarr v. BEF Foods, Inc.,
`2020 WL 729883 (E.D.N.Y. Feb. 13, 2020)....................................................................8, 9, 10
`
`iii
`
`

`

`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 5 of 22 Page ID #37
`
`Scherr v. Marriott Int’l, Inc.,
`703 F.3d 1069 (7th Cir. 2013) .................................................................................................15
`
`Schiesser v. Ford Motor Co.,
`2016 WL 6395457 (N.D. Ill. Oct. 28, 2016)............................................................................14
`
`Simic v. City of Chicago,
`851 F.3d 734 (7th Cir. 2017) ...................................................................................................15
`
`Spector v. Mondelēz Int’l, Inc.,
`178 F. Supp. 3d 657 (N.D. Ill. 2016) .................................................................................12, 14
`
`Steele v. Wegmans Food Mkts, Inc.,
`472 F. Supp. 3d 47 (S.D.N.Y. 2020)..................................................................................10, 11
`
`Thorner v. Fleetwood,
`2002 WL 1998285 (N.D. Ill. Aug. 28, 2002) ..........................................................................13
`
`Tricontinental Indus., Ltd. v. PricewaterhouseCoopers, LLP,
`475 F.3d 824 (7th Cir. 2007) ...................................................................................................14
`
`Twohig v. Shop-Rite Supermarkets, Inc.,
`519 F. Supp. 3d 154 (S.D.N.Y. 2021)......................................................................................10
`
`Varela v. Walmart, Inc.,
`2021 WL 2172827 (C.D. Cal. May 25, 2021) .........................................................................10
`
`Workman v. Plum Inc.,
`141 F. Supp. 3d 1032 (N.D. Cal. 2015) ...................................................................................11
`
`Wynn et al. v. Topco Assocs., LLC,
`2021 WL 168541 (S.D.N.Y. Jan. 19, 2021) ............................................................................10
`
`Yeftich v. Navistar, Inc.,
`722 F.3d 911 (7th Cir. 2013) ...................................................................................................14
`
`Statutes
`
`15 U.S.C. § 2301 ............................................................................................................................14
`
`iv
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 6 of 22 Page ID #38
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`I.
`
`INTRODUCTION
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`Defendant Pepperidge Farm, Incorporated (“Pepperidge Farm”) manufactures “Golden
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`Butter Crackers.” A butter cracker is a type of cracker. The name quickly and conveniently
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`identifies that fact for consumers and
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`distinguishes the product from the many
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`other types of cracker products on grocery
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`store shelves. At absolute best for plaintiff,
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`the product’s name may suggest that it
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`contains butter, and any such suggestion
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`would be 100% accurate. Indeed, butter is
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`the second most predominant ingredient
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`after flour and is the sole shortening
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`ingredient in the product. Significantly, the
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`name of the product is not an ingredient
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`list—whether as to the presence of butter or
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`otherwise—and most certainly not a
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`complete ingredient list. Likewise, the product name is not an ingredient exclusion list. And even
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`if the product name was somehow loosely associated with the ingredients, the product name says
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`nothing about oil at all—and certainly does not say that oil is not present in the product. There is
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`nothing about the product name itself that would make a reasonable consumer assume that there
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`is no oil in the product.
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`Nevertheless, plaintiff Deborah Floyd’s complaint alleges that the product name “Golden
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`Butter Crackers” is somehow deceptive because the product contains oil. Plaintiff’s theory is not
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`1
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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 7 of 22 Page ID #39
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`that the product contains no butter (it does), or that butter is not the predominant shortening
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`ingredient (it is), or that the label expressly disclaims the presence of oil (it doesn’t), or that the
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`ingredient list is wrong (it is right). Instead, plaintiff makes the strained argument that
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`“[w]herever butter could be used in a food labeled as ‘Butter _____,’ consumers will expect
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`butter instead of its synthetic substitutes, vegetable oils.” Compl. ¶ 4. According to plaintiff, the
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`product must not contain any other ingredient, in any amount, for any purpose that butter could
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`serve. Having set up that strawman, plaintiff alleges that the ingredient list on the product label
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`declares vegetable oil in addition to butter and, therefore, she is a victim of deception. That’s
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`right, plaintiff discovered the supposed fraud because defendant clearly and accurately declared
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`the very ingredient (vegetable oil) on the very product label that she now claims to have been
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`fooled by.
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`This is not the first time that plaintiff’s counsel, Mr. Sheehan, has filed a lawsuit against
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`Pepperidge Farm on this identical deception theory. On October 28, 2020, Mr. Sheehan, on
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`behalf of consumer Hawa Kamara, filed a complaint in the Southern District of New York,
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`alleging that plaintiff was, and a putative class would have been, deceived by “Golden Butter
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`Crackers.” See Kamara v. Pepperidge Farm, Incorporated, No. 1:20-cv-09012 (S.D.N.Y.), at
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`ECF No. 1. In the original complaint, the plaintiff alleged that when she read the name “Golden
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`Butter Crackers,” it caused her to believe that butter was the only ingredient used as a shortening
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`in the crackers when, allegedly, vegetable oil also served as a shortening ingredient. Id. at ¶¶ 1,
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`5, and 7. However, as part of the pre-motion proceedings on the initial complaint, Ms. Kamara
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`became aware that butter is, in fact, the only ingredient used as shortening in the product
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`(directly contradicting her conclusory allegations in the initial complaint). Ms. Kamara then
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`pivoted in the first amended complaint to a deception theory nearly identical to that alleged here:
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`2
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 8 of 22 Page ID #40
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`that whenever and wherever butter can be used in the product, it must be used in the product to
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`the exclusion of oil. Id., see ECF No. 23 at ¶ 4. A motion to dismiss that case is fully briefed and
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`currently pending decision. Perhaps sensing issues with the contradictory and morphing
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`deception theory in Kamara, Mr. Sheehan took his amended allegations from Kamara and filed a
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`substantially similar case in this Court.
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`However, whether in this Court or in the Southern District of New York, plaintiff’s
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`copycat deception theory contradicts common sense and fails basic pleading standards, and does
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`not form the basis of a consumer deception claim. The product label is not and does not purport
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`to be an ingredient list, and it contains no express or implied message about the ingredient
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`composition of the crackers or the exclusion of oil. A reasonable consumer would not conclude
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`otherwise. And to the extent a reasonable consumer wants to know if the product contains oil, the
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`consumer would need only to consult the ingredient list literally at the consumer’s fingertips,
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`which accurately lists vegetable oils as an ingredient, after (and therefore less predominant than)
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`flour and butter. Similarly, for all of the same reasons that plaintiff’s consumer deception theory
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`fails, the complaint’s tag-along ancillary claims should also be dismissed along with the ICFA
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`claims. In addition to resting on the same implausible theory of deception as the false advertising
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`claim, these secondary causes of action suffer additional flaws and should be rejected
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`accordingly.
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`II.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`A.
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`The “Golden Butter Cracker” Product
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`Defendant Pepperidge Farm, Incorporated (“Pepperidge Farm”) manufactures and
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`3
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 9 of 22 Page ID #41
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`markets Golden Butter Crackers. Butter crackers are a kind of cracker (Compl. at ¶ 21), so the
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`name of the product, first and foremost, serves the purpose of helping consumers to identify the
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`cracker they are purchasing. In addition to the product’s name, the label also includes a required
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`ingredient list, which declares all ingredients contained in the product in order of predominance,
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`in accordance with federal law:
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`Compl. at ¶ 10 (marking added). As indicated by the ingredient list, butter is the second most
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`predominant ingredient in the product, after enriched wheat flour.2 The ingredient list also
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`clearly identifies that Golden Butter Crackers contains other ingredients, including vegetable oil,
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`which is listed after butter and, therefore, is present in a lower quantity than butter (because
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`ingredients are listed in order of predominance, 21 C.F.R. § 101.4(a)). Plaintiff’s allegation that
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`1 See also https://www.epicurious.com/expert-advice/best-butter-crackers-you-can-buy-at-the-
`store-taste-test-article (article discussing several butter crackers).
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`2 It’s not clear what plaintiff means in ¶ 3 of the complaint when she alleges that “‘butter cracker’
`does not mean ‘a cracker made with butter’ but a cracker which is all or predominantly made
`with butter” (that seems impossible as a matter of food physics). But, in the only way that the
`allegation makes sense, plaintiff got exactly what she expected: a cracker where butter is the
`second most predominant ingredient, second only to flour. Plaintiff appears to recognize this,
`when she seemingly switches up her own theory by saying that butter simply must be used for
`every possible function that butter can be used for. Id. at ¶ 4. That fantastical extension of her
`fascination with the word butter in the product name is factually bankrupt and legally insufficient
`for the reasons stated in the text.
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`4
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 10 of 22 Page ID #42
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`the product does not disclose oil on the ingredient list, what plaintiff refers to as a butter
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`substitute (Compl. ¶ 11), is thus nonsensical.
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`Significantly, and as Pepperidge Farm informed plaintiff’s counsel as part of the Kamara
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`proceedings, the vegetable oil used in the product is refined, bleached, and deodorized (“RBD”),
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`meaning that it does not add any odor or taste (butter or otherwise) to the crackers, and is used
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`exclusively in the product as a post-bake application (spray) to provide crispness and texture to
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`the crackers. See Kamara, ECF No. 18 at 2.3
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`B.
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`Plaintiff’s Allegations
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`The complaint asserts that consumers understand “Golden Butter Crackers” to mean that
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`the cracker is made all or predominantly with butter. However, according to plaintiff, the product
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`contains “more vegetable oil than expected” (Compl. at ¶ 11), and Pepperidge Farm “substitutes
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`vegetable oils for butter” (id. at ¶ 13). By this, plaintiff means that consumers were deceived
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`because butter could be used for the post-bake spray instead of oil, and, therefore, butter must be
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`used for that purpose as well. Id. at ¶¶ 16-18.
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`Plaintiff claims to have purchased the crackers “on one or more occasions at one or more
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`locations, including Schnucks, 222 Troy Rd, Edwardsville, IL 62026, on multiple occasions
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`during 2019 and 2020.” Id. at ¶ 41. Plaintiff alleges that she “bought the Product because she
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`wanted to consume a cracker which contained more butter than it did and did not contain butter
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`substitutes where butter could be used” (id. at ¶ 42), but does not allege why she believed the
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`cracker contained more butter, why butter being the second most predominant ingredient was not
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`3 Perhaps in response to these discussions, plaintiff alleges that vegetable oils that are refined,
`bleached, and deodorized may result in a flavor that is “beany,” “powdery,” or “fishy.” Compl.
`¶¶ 19-23. However, these allegations are tangential to the case, as plaintiff never alleges that
`crackers did not meet her expectations as to these attributes or and did not otherwise taste as
`expected.
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`5
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 11 of 22 Page ID #43
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`“enough” butter, or why butter must be used for the post-bake spray or that it even could be used
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`for that purpose. Plaintiff alleges that she “relied on the representations” (id. at ¶ 56), but does
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`not specifically identify the “representations,” or why she understood those representations to
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`mean that the crackers contained more butter or only butter.
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`III.
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`THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE
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`A.
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`Legal Standard For Motion To Dismiss
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`To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, “a complaint must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “A claim has facial plausibility”
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`only “when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Id. Courts insist on
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`“‘specificity in pleading’ . . . to avoid the potentially enormous expense of discovery in cases
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`with ‘no reasonably founded hope’” of success. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558-
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`59 (2007) (citations omitted). Evaluating a motion to dismiss is “a context-specific task that
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`requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
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`U.S. at 679. If the well-pleaded facts do not permit the court “to infer more than the mere
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`possibility of misconduct,” the complaint fails to show “that the pleader is entitled to relief.” Id.
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`(citation omitted).
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`Claims made pursuant to the Illinois Consumer Fraud and Deceptive Business Practices
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`Act (“ICFA”), and for alleged fraud and unjust enrichment that sound in fraud, are also subject to
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`Fed. R. Civ. P. 9(b)’s heightened pleading standard. See, e.g., Pirelli Armstrong Tire Corp.
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`Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 441-42 (7th Cir. 2011) (applying
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`heightened standard to ICFA, fraud, and unjust enrichment claims). When a pleading sounds in
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`6
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 12 of 22 Page ID #44
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`fraud, it must satisfy the particularity requirement of Rule 9(b), which requires that a plaintiff
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`“state with particularity the circumstances constituting fraud.” Reid v. Unilever U.S., Inc., 964 F.
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`Supp. 2d 893, 905 (N.D. Ill. 2013).
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`To state a claim under the ICFA, plaintiff must demonstrate that Golden Butter Crackers
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`are likely to mislead a reasonable consumer. Galanis v. Starbucks Corp., 2016 WL 6037962, at
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`*2 (N.D. Ill. Oct. 14, 2016). Under this objective standard, the Court asks whether the challenged
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`statement “can be read to create a likelihood of deception or to have the capacity to deceive.”
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`Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 938 (7th Cir. 2001). A court may dismiss an ICFA
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`claim at the pleading stage “if the challenged statement was not misleading as a matter of law.”
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`Ibarrola v. Kind, LLC, 83 F. Supp. 3d 751, 756 (N.D. Ill. 2015); see also Guajardo v. Skechers
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`USA, Inc., 2021 WL 4302532, at *3 (C.D. Ill. Sept. 21, 2021) (ICFA claim dismissed at pleading
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`stage where plaintiff failed to allege “any direct statements . . . that contain material
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`omissions.”).
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`B.
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`Plaintiff Has Not Plausibly Alleged That The Product Name “Golden Butter”
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`Crackers Is Deceptive
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`The complaint fails to state a plausible claim because reasonable consumers are not
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`deceived when vegetable oil is an ingredient—present in a lesser quantity than butter no less—in
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`a product named “Golden Butter Crackers.” This case, like many other “butter” cases in
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`plaintiff’s counsel’s prolific portfolio,4 should be dismissed because there is no deception when a
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`product has butter in its name (to denote the type of product), actually contains butter (indeed, as
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`the second most predominate ingredient), and also contains oil (to a lesser extent than butter) and
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`4 Plaintiff’s counsel has filed over 250 false advertising cases over the past several years, at least
`ten of which have challenged “butter” advertising statements.
`7
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 13 of 22 Page ID #45
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`expressly declares the oil’s presence in the ingredient list. Such a product is consistent with the
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`actual representations made on its label, and there can be no deception.
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`A similar case brought by plaintiff’s counsel in another jurisdiction, Sarr v. BEF Foods,
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`Inc., 2020 WL 729883 (E.D.N.Y. Feb. 13, 2020), is instructive on this point, and the same result
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`should issue here. In Sarr, the front label made the marketing claim that mashed potatoes were
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`“made with real . . . butter.” Id. at *1. There, as here, plaintiff’s counsel argued that the
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`challenged mashed potato product was deceptively labeled when, in addition to containing real
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`butter, the product also contained vegetable oil. 2020 WL 729883, at *4-5. The Sarr court
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`dismissed these claims as implausible. Id. In a ruling directly applicable and dispositive, the
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`court held that defendant’s true statement that the mashed potatoes contained “real butter” was
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`not likely to mislead a reasonable consumer because “it is not plausible that a reasonable
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`consumer would likely interpret the ‘real butter’ representation to imply that the Mashed
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`Potatoes did not also contain additional fats.” Id. at *4.
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`Similarly, in an almost identical case, also brought by plaintiff’s counsel, Reyes v. Crystal
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`Farms Refrigerated Distrib. Co., 2019 WL 3409883 (E.D.N.Y. July 26, 2019), the court
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`dismissed claims that packaged mashed potatoes were deceptively labeled “Made with Real
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`Butter” because they contained not only butter but also margarine—the presence of which the
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`ingredient list disclosed. 2019 WL 3409883, at *3. In Reyes, the court’s deception analysis began
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`and ended with the truth: “The statement ‘made with real butter’ does not violate [New York’s
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`consumer deception law] because it is not misleading. Defendant’s mashed potatoes contain
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`butter.” Id. The court then noted that there was no allegation that the product contained more
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`margarine than butter, and, “[i]n fact, butter precedes margarine on the ingredients list on the
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`back of Defendant’s mashed-potatoes packaging, suggesting that the mashed potatoes contain
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`8
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`

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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 14 of 22 Page ID #46
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`more butter than margarine.” Id. (citation omitted).
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`This case fits squarely within the reasoning of Sarr and Reyes. The product does, in fact,
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`contain butter and, as in Sarr and Reyes, butter precedes vegetable oil on the ingredient list in
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`order of predominance. See Compl. ¶ 10. The product name, “Golden Butter Crackers” is
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`intended to inform the consumer what the product is—a butter cracker (Compl. at ¶ 2; n.1,
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`supra)—and could not plausibly deceive a reasonable consumer into thinking that “[w]herever
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`butter could be used,” “consumers will expect butter instead of its synthetic substitutes,
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`vegetable oils” (Compl. ¶ 4). There is no rule or common understanding that butter crackers may
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`not have oil as an ingredient, and plenty of butter cracker recipes include oil.5
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`Pepperidge Farm anticipates that plaintiff will invoke the Seventh Circuit’s decision in
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`Bell v. Publix Super Mkts., Inc., 982 F.3d 468 (7th Cir. 2020) to argue that a deception claim is
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`plausible here and should survive dismissal. However, under Bell, plaintiff’s case fares no better.
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`Most significantly, the product in Bell was labeled as “100% Grated Parmesan Cheese,” when it
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`fact in contained other ingredients. Id. at 476-77. The packaging here contains no such qualifier
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`suggesting exclusivity or proportions of butter (and, in fact, a cracker could not be “100%
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`butter,” and that notion defies both food science and common sense). This leads to the second
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`critical difference: the crackers are not labeled as a single-ingredient food (as was the Parmesan
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`cheese in Bell) or a singular-type food. Consumers understand that a cracker has multiple
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`ingredients, not all of which can be identified in the name. These differences reveal why Bell
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`supports dismissal here. The Seventh Circuit—tracking Twombly/Iqbal—reaffirmed that “where
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`plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels
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`5 See, e.g., https://www.epicurious.com/recipes/food/views/butter-crackers-51124400 and
`https://www.yummly.com/recipe/Homemade-Butter-Crackers-2731873
`
`9
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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 15 of 22 Page ID #47
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`or other advertising, dismissal on the pleadings may well be justified.” Bell, 982 F.3d at 477.
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`This is precisely one of those cases: no reasonable consumer would believe that “Golden Butter
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`Crackers” provides specifics about the entire composition of the product, and whether or not it
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`includes vegetable oil as a post-bake spray.
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`What’s more, because there is no possible ambiguity on the front-of-pack (the label does
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`not say “Crackers Made of 100% Butter,” or “all butter,” or “only one fat, and it’s butter,” or “no
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`ingredient but butter” – nor could it, since the product is a cracker, and not a stick of butter), the
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`ingredient list on the product label is dispositive because it informs consumers of the exact
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`ingredients in the product, including vegetable oil.6 See Varela v. Walmart, Inc., 2021 WL
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`2172827, at *6, 8 (C.D. Cal. May 25, 2021) (skincare product labeled as “vitamin E skin oil”
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`where product contains a mixture of oils (i.e., soybean, coconut, and lemon peel) not deceptive in
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`part because label disclosed amount of vitamin E and product contained “an accurate full
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`ingredient list”); Barreto v. Westbrae Natural, Inc., 518 F. Supp. 3d 795, 802 (S.D.N.Y. 2021)
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`(ingredient list resolves confusion regarding the product’s ingredients); Sarr, 2020 WL 729883,
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`6 See also Brodsky v. Aldi Inc., 2021 WL 4439304, at *5 (N.D. Ill. Sept. 28, 2021) (in case where
`coffee canister stated that it would yield “up to” a certain number of six-ounce coffee cups,
`implausible that reasonable consumers would be deceived where maximum yield might not be
`reached); Dashnau v. Unilever Mfg. (US), Inc., - F. Supp. 3d -, 2021 WL 1163716, at *8
`(S.D.N.Y. Mar. 26, 2021) (in “vanilla” case, claims dismissed because plaintiffs failed to
`adequately allege a material misrepresentation); Cosgrove v. Or. Chai, Inc., 520 F. Supp. 3d 562,
`582 (S.D.N.Y. 2021) (dismissing complaint where “there is nothing to suggest the exclusive, or
`even predominant, use of vanilla beans as opposed to other sources”); Twohig v. Shop-Rite
`Supermarkets, Inc., 519 F. Supp. 3d 154, 161-62 (S.D.N.Y. 2021) (similar); Harris v. Mondelēz
`Global LLC, 2020 WL 4336390, at *2-3 (E.D.N.Y. July 28, 2020) (dismissing complaint and
`holding label “Always Made With Real Cocoa” is not misleading where product “contain[s]
`cocoa, along with other ingredients”); Steele v. Wegmans Food Mkts, Inc., 472 F. Supp. 3d 47,
`50 (S.D.N.Y. 2020) (dismissing complaint because reasonable consumer would not be deceived
`by “vanilla ice cream” label, since label correctly identifies the ice cream’s taste); Pichardo v.
`Only What You Need, Inc., 2020 WL 6323775, at *3-4 (S.D.N.Y. Oct. 27, 2020) (applying Steele
`and dismissing “vanilla” flavor complaint); Wynn et al. v. Topco Assocs., LLC, 2021 WL
`168541, at *3-4 (S.D.N.Y. Jan. 19, 2021) (detailing reasons for dismissal).
`10
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`Case 3:21-cv-00525-SPM Document 12-1 Filed 10/22/21 Page 16 of 22 Page ID #48
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`at *5 (clarification by the ingredient list resolves any deception); Workman v. Plum Inc., 141 F.
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`Supp. 3d 1032, 1036 (N.D. Cal. 2015) (no consumer deception where front label featured one,
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`and not all ingredients, but the ingredient list provided full information to the consumer
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`regarding the product ingredients); Manchouck v. Mondelēz Int'l Inc., 2013 WL 5400285, at *2
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`(N.D. Cal. Sept. 26, 2013) (“made with real fruit” did not deceptively imply that product
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`excluded processed pureed fruit); Gubala v. CVS Pharmacy, Inc., 2015 WL 3777627, at *6-7
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`(N.D. Ill. June 16, 2015) (allegations that product label was deceptive because it highlighted one
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`ingredient (whey protein powder) and not others insufficient in part because product label
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`“clearly mentions its artificial flavors and vanilla flavor in addition to the whey protein”); Reyes,
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`2019 WL 3409883, at *3 (alleged consumer confusion about what ingredients may be in a
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`product is sufficiently dispelled by the ingredients label on the back of the package); Davis v.
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`Hain Celestial Grp., Inc., 297 F. Supp. 3d 327, 337 (E.D.N.Y. 2018) (“The ingredient lists . . .
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`clarif[ies]” the precise ingredients in a product in order of predominance “in exactly the spot
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`consumers are trained to look”); Steele, 472 F. Supp. 3d at 50 (“Those interested in the actual
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`ingredients can read the list.”); see also Fuchs v. Menard, Inc., 2017 WL 4339821, at *5 (N.D.
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`Ill. Sept. 29, 2017) (lumber labeling not deceptive, in part, because “Plain