A Wisconsin creamery selling "Irishgold" butter and the distributor of Kerrygold butter have agreed to a consent decree that will end a trademark dispute. Ornua Foods N. Am. v. Eurogold USA, No. 17-0510 (E.D. Wis., motion filed July 25, 2017). After Wisconsin began enforcing a 1950s law requiring all butter sold in the state to bear a state or federal grade mark, effectively banning all imports and out-of-state artisanal products, Wisconsin dairy Old World Creamery began selling its own butter in packaging similar to Kerrygold. Additional details about the ban and trademark suit appear in Issue 631 of this Update. Under the consent decree, the dairy will (i) continue to sell its Irish-style butter but will amend the mark to “Euro Gold” or “Euro-Gold"; (ii) withdraw its trademark application for “Irishgold” butter; (iii) refrain from using “substantially similar” packaging; (iv) not sell any Irish-themed dairy products under a mark that…
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An Ohio company has filed a lawsuit alleging Wisconsin’s ban on sales of ungraded butter violates the Commerce Clause, due process, equal protection and free speech. Minerva Dairy, Inc. v. Brancel, No. 17299 (W.D. Wis., filed April 20, 2017). In early 2017, Wisconsin began enforcing a 1954 law requiring all butter sold in the state to bear either a state or a U.S. Department of Agriculture (USDA) grade mark, telling retailers and producers to remove out-of-state butter from store shelves or risk fines and imprisonment. Minerva Dairy, Inc. argues that the ban serves no rational or legitimate governmental interest. “In contrast to butter inspection, which ensures that the butter comports with health and safety regulations, butter grades are used only to ensure a government-mandated taste,” the complaint argues. Minerva alleges that small companies are unable to afford obtaining USDA grading and creating separate labels solely for Wisconsin sales. Accordingly, the…
The Irish distributor of Kerrygold butter won an emergency restraining order against a Wisconsin creamery after alleging the creamery backed out of an agreement to process Kerrygold locally and later created its own nearly identical product, “Irishgold,” infringing Kerrygold’s trademark. Ornua Foods N. Am., Inc. v. Eurogold USA LLC, No. 170510 (E.D. Wis., filed April 10, 2017). A Wisconsin federal court granted the order after finding Ornua Foods, Kellygold’s maker, likely to win the trademark case it filed on the merits. After Kerrygold became the top-selling imported butter in the United States, Wisconsin removed Kerrygold butter from stores under a statute requiring all butter sold in the state to bear either a Wisconsin or federal grade mark. After the ban, Ornua Foods began working with Wisconsin state officials and defendant Old World Creamery to process the Irish-made butter a second time, making it eligible for a state grade mark. The…
Twenty-three Dunkin’ Donuts franchise locations in Massachusetts have reached a tentative settlement with a plaintiff who claimed the stores served him “margarine or a butter substitute” on his bagels despite his request for butter. Polanik v. Boston Hill Donuts, LLC, No. 17-84914 (Suffolk Cty. Superior Ct., settlement agreement filed March 24, 2017); Polanik v. CM&R Donuts, Inc., No. 17-84915 (Suffolk Cty. Superior Ct., settlement agreement filed March 24, 2017). In both projected class actions, the plaintiff claimed he paid 25 cents each time he ordered butter and was never told a butter substitute was used instead. A Dunkin’ Donuts spokesperson told The Boston Globe in 2013 that the recommended store procedure was to serve individual whipped butter packets if requested by the customer, but otherwise employees apply “vegetable spread” to bagels or pastries. If the settlement is approved, the plaintiff will receive $500 and up to 1,400 customers may claim…
A meta-analysis examining the effect of dairy fats on health has identified “a small positive association between butter consumption and all-cause mortality, no significant association with incident CVD [cardiovascular disease] or CVD subtypes, and a modest inverse association with type 2 diabetes.” Laura Pimpin, et al., “Is Butter Back? A Systematic Review and Meta-Analysis of Butter Consumption and Risk of Cardiovascular Disease, Diabetes, and Total Mortality,” PLoS One, June 2016. Relying on data from nine studies that included 636,151 unique participants with 6.5 million person-years of follow-up, researchers reported that “each daily serving of butter (14g/d) was associated with a 1% higher risk of death” from all causes. The pooled data, however, also showed that each 14-gram serving of butter per day was associated with a 4-percent lower incidence of type 2 diabetes, while the studies found no association between butter consumption and stroke, coronary heart disease or total CVD.…
The General Court of the European Union has upheld a ruling that pomazánkové máslo, a product primarily marketed in the Czech Republic, cannot be labeled as “butter” under the single common market organization (CMO) regulation. Czech Republic v. European Commission, No. T-51/14 (Gen. Ct., order entered May 12, 2015). The product, a spread used in similar ways to butter, has a minimum fat content of 31 percent by weight, a minimum dry nonfat milk-material content of 42 percent, and a water content of up to 58 percent. The court ruled that the product does not meet the regulation’s standards, which require between 80 and 90 percent of milk-fat content, a maximum water content of 16 percent and a maximum dry material content of 2 percent. Further, the court ruled, the Czech Republic cannot circumvent the provisions of the single CMO regulation by claiming to be exempt if the product is…
A California federal court has denied Boulder Brands, Inc.’s motion to dismiss a lawsuit alleging that the company misrepresents the cholesterol-blocking effect of the plant sterols in its Smart Balance® butter products because the amount of plant sterols is “not enough to generate a ‘clinically meaningful cholesterol blocking effect.’” Mitchell v. Boulder Brands, Inc., No. 12-1862 (S.D. Cal., order entered April 16, 2015). The court declined to reconsider its earlier decision that “the products’ labels could plausibly be read as implying a ‘clinically meaningful cholesterol blocking benefit’ and that this implied representation is ‘specific, measurable, and falsifiable.’” The expert report upon which the court has based its decision stated that a minimum of 800 milligrams of plant sterols—eight times the content in one serving of the Smart Balance® product—would be the minimum to meaningfully block cholesterol. Issue 563
A California appeals court has affirmed the dismissal with prejudice of a putative class action alleging that Kroger Corp. misled consumers by failing to comply with federal and state law requirements for labeling its Challenge® spreadable butter products. Simpson v. The Kroger Corp., No. B242405 (Cal. App. Ct., decided September 25, 2013). The court found that the labeling requirements of the state Milk and Milk Products Act of 1947 were not identical to federal labeling requirements, and thus claims based on the Act were preempted. And while the court found that the plaintiff’s mislabeling claims under the state Sherman Food, Drug and Cosmetic Law were not preempted, it ruled that the trial court did not abuse its discretion in denying leave to amend the complaint, because “as a matter of law, plaintiff has failed to demonstrate that a reasonable consumer would be misled by the labels on the products.” Noting…
A federal court in California has dismissed as preempted certain claims filed by a putative class alleging that Unilever deceptively markets “I Can’t Believe It’s Not Butter! Spray.” Pardini v. Unilever U.S., Inc., No. 13-1675 (N.D. Cal., order entered July 9, 2013). The dismissal was without prejudice, and the plaintiff has 30 days to amend her complaint. Other claims were also dismissed without prejudice because they were not sufficiently pleaded or because the plaintiff lacked standing to assert a claim under the consumer protection laws of the other states named in the complaint. A claim for unjust enrichment was dismissed with prejudice. The plaintiff claims that the product is deceptively marketed as having “0 fat” and “0 calories” when it actually contains 771 calories and 82 grams of fat per bottle. While the product label specifies that the no-fat and no-calories claim is per serving, and users are referred to…
A federal court in California has denied the defendant’s motion to dismiss a putative class action alleging that the company misleads consumers by claiming that its Smart Balance® butter products contain plant sterols that can block the absorption of cholesterol; according to the plaintiff, a single serving of the product contains insufficient sterols to achieve the stated benefit. Aguilar v. Boulder Brands, Inc., No. 12-1862 (S.D. Cal., order entered June 10, 2013). Among other matters, the court determined that the named plaintiff had standing to assert claims involving two products that she did not purchase, because the products “advertise the same health benefits arising from the same additional ingredients found on the label in the same position” as the product she did purchase. According to the court, her ability to represent class members allegedly injured by similar products must be analyzed under Rule 23 and not on a motion to…
