September 27, 2013
Partner Sarah Roller and associate Donnelly McDowell were noted as the defendants' legal team in a Law360 article titled "Kroger Wins Calif. Appeal Of Butter Label Dispute." The article reports on a published decision by the California Court of Appeal that affirms the dismissal of the consumer class action suit Simpson v. Challenge Dairy.
In January 2012 Plaintiff Mary L. Simpson filed a class action lawsuit against Challenge Dairy Inc. and Kroger Inc., alleging that the labeling of "Spreadable Butter with Canola Oil" was false and misleading, as it is not pure butter. After an initial dismissal and appeal, the Court of Appeal found that dismissal of the case with prejudice was appropriate because there was no legal theory under which the plaintiff could assert that the labeling of Challenge Diary's product violated the law. This is an important decision for defendants because not only does it reaffirm the vitality of a preemption defense, it also establishes that a trial court can dismiss, as a matter of law, claims challenging food labeling that are simply implausible or do not meet the reasonable consumer standard.