Briefing closed last month on Post Holdings Inc.’s attempt to dismiss a putative class action false labeling suit over Post’s prepackaged mashed potatoes, which Post claims are “made with real butter.” The plaintiffs allege that although the product does contain real butter, Post misrepresented that in fact it also contains margarine. The plaintiffs initiated suit in November 2017 and asserted causes of action for violations of New York consumer protection laws, fraud, and unjust enrichment, claiming: “Butter occupies the natural, simple and minimally processed category, while margarine is the epitome of an artificial and processed food consumers are trying to avoid.”

In briefing, Post urged the court to reject the plaintiff’s alleged attempt to recast the case as an “all natural” case, stating that it “never promoted Simply Potatoes as all-natural, either expressly or by implication” and asserted that the plaintiffs’ false labeling claims as to the “made with real butter” and “fresh” language are preempted by regulations promulgated under the Federal Food, Drug, and Cosmetic Act. The court’s decision remains pending.

Takeaway: If this case proceeds past dismissal, it could impact the claims advertisers may make on food packaging and require more explicit ingredient labelling.