NEW YORK (Legal Newsline) – Pepperidge Farm, accused of not putting enough butter in its butter crackers, is asking a federal judge to throw out a proposed class action lawsuit.
The company on May 28 filed its motion to dismiss the lawsuit brought by lawyer Spencer Sheehan in New York federal court. The case concedes that there is butter in Golden Butter crackers the company makes, but alleges there is not enough to justify calling them butter crackers on the front of the box.
“A butter cracker is a type of cracker,” Pepperidge Farm’s motion says. “(B)utter is the second most predominant ingredient after flour and is the sole shortening ingredient in the product.
“But the name of the product is not an ingredient list, and most certainly not a complete ingredient list… And even if the product name was somehow loosely associated with the ingredients, the product name says nothing about oil at all – and certainly does not deny that oil is present in the product.”
Sheehan’s lawsuit complains about vegetable oil in the crackers, alleging the branding and packaging is designed to deceive customers. It claimed oil was used as shortening but Sheehan has since learned that only butter is, leading to the filing of an amended complaint.
Buyers have paid higher prices than they would have if they had known the crackers weren’t as buttery as they were promised to be, the suit says.
Pepperidge Farm’s motion says the lawsuit does not plausibly allege “golden butter” is a deceptive term.
“After learning that the primary tenet of her complaint was flatly wrong—butter is, in fact, the only ingredient used as a shortening in the crackers—the FAC asserts that now plaintiff was deceived because butter could be used for the post-bake spray instead of oil, and, therefore, butter must be used for that purpose as well,” the motion says.
“If not, defendant is deceiving consumers. Plaintiff purportedly gets all this solely from the name ‘Golden Butter Crackers.’ This new, evolved, and even more strained theory of deception fails the plausibility test.
Pepperidge Farm is represented by Dale Giali and Keri Borders of Mayer Brown.