A federal court in California, presiding over two putative class actions alleging that I Can’t Believe It’s Not Butter!®, Country Crock® and other cholesterol-free margarines were falsely advertised as nutritious, has denied a joint motion for preliminary approval of a class settlement. Red v. Unilever PLC, No. 10-00387 (N.D. Cal., order filed November 16, 2010). The court was concerned about “the waiver of certain damages claims and need for opt-out in a Federal Rule of Civil Procedure 23(b)(2) injunctive class where the proposed class received no monetary relief.”

Scheduling a settlement hearing for the parties with a special master on or
before December 13, 2010, the court allowed the parties to continue negotiating
and expanded the special master’s authority “to negotiate a revised
settlement to address the Court’s concerns.”

The cases, filed in 2009, involve claims that butter-substitute makers have
violated consumer protection laws by promoting their products as “healthy”
and “nutritious” when they contain purportedly dangerous levels of trans
fats. Further details about one of the cases appear in Issue 307 of this Update.
According to a news source, the proposed settlement would require the company to reduce or eliminate the use of partially hydrogenated vegetable
oils in its margarine sticks by the end of 2011. The defendant was apparently
prepared to spend $10 million to remove trans fat from its spread and commit
$500,000 to research aimed at finding an alternative ingredient that would
allow margarine sticks to remain firm. The proposed settlement would also
apparently have required the court to certify a nationwide class of those who
purchased the products since January 2000. See Product Liability Law 360,
November 17, 2010.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.