Unilever United States, Inc. has asked a federal district court to dismiss a putative class action charging the company with falsely advertising its “I Can’t Believe It’s Not Butter”® product. Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal, motion filed November 30, 2009). According to Unilever’s motion, this is a “Private Surgeon General” case that seeks refunds for products purchased over the last four years because Unilever allegedly (i) falsely claims that its products are “Made With A Blend of Nutritious Oils,” and (ii) fails to disclose that the products contain trace amounts of trans fatty acids.

Unilever argues that the claims are preempted by federal law which requires a “zero” trans fat content label if the product contains less than 0.5 gram per serving. The company also seeks dismissal under the dormant Commerce Clause, contending that, “If successful, Rosen will Balkanize [trans fat] labeling rules—one set of rules for California that he prescribes and another prescribed by the FDA for everyone else.” The company further argues that the court should abstain to avoid entanglement “in a complex area already subject to oversight by an agency having day-to-day supervision responsibilities.” According to Unilever, “The debate over the relative benefits of butter versus other fats is ongoing and raises numerous complexities.”

The company’s motion also invokes the defense of truth, claiming that its “nutritious oil” assertions are true, and non-actionable puffery in regard to its comparisons to butter. Finally, the company argues that the plaintiff has not met applicable pleading standards, is not entitled to injunctive relief and cannot be awarded damages under the Consumers Legal Remedies Act.

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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.