The lawsuit - which was filed in California last week by plaintiff Erin Allen - mirrors a complaint filed against ConAgra in Nebraska last August by plaintiff Pamela Sue Trewhitt that has just been voluntary dismissed.
Central to Allen's case is the allegation that ConAgra specifies an unrealistically small serving size for its 'guilt-free' Parkay spray.
FDA permits ‘fat-free’ claims on products containing less than 0.5g fat per serving and ‘zero-calorie’ claims on products with fewer than 5 calories/serving
On the product label submitted as evidence in the lawsuit, the serving size is defined as 1 spray (0.2g) ‘for cooking’ and 5 sprays (1g) ‘for topping'.
Given that not all of the 44% veg oil spray is pure fat, this amounts to 0.08g fat/0.7 calories per 1-spray serving for cooking and 0.4g fat/3.7 calories per 5-spray serving for topping.*
On the face of it, this would appear to make the product compliant with FDA rules on nutrient content claims, which permit firms to make ‘zero fat’ claims on products containing less than 0.5g fat per serving and ‘zero calorie’ claims on products containing fewer than 5 calories per serving.
Meanwhile, the 0.2g serving size - for cooking at least - is actually under the FDA's 0.25g reference amount customarily consumed (RACC) for fat sprays.
Defendant’s failure to disclose trace amounts of fat renders its product false and misleading
According to Allen, however, ConAgra is using “artificially small serving sizes to understate the amount of fat and calories in the product” (although she does not say what a more realistic serving size might be).
In addition, Parkay spray “does ‘not disclose that certain ingredients supply trace amounts of fats’ as required by law”, she alleges.
Specifically, firms making ‘fat free’ claims are required by law to put an asterisk next to any fats on the ingredients list referring consumers to a statement that says: ‘adds a trivial amount of fat’ or ‘adds a dietarily insignificant amount of fat’, she adds.
Emord: Plaintiff’s argument is unusual and, in my view, unlikely to succeed
However, food law attorneys contacted by FoodNavigator-USA said that they did not fancy Allen’s chances.
Jonathan Emord from law firm Emord & Associates said: "This Plaintiff’s argument is unusual and, in my view, unlikely to succeed.
"Enforcement of the Food Drug & Cosmetic Act is exclusively by the FDA, so a private plaintiff asserting in effect that a company has created a serving size at odds with actual consumer use would ordinarily be limited to pursuing the complaint through the FDA.”
The burden of proof is on plaintiff to prove consumers use the product beyond the serving size specified on the label
Meanwhile, Allen would have to present a very compelling case that users of Parkay spray typically consumed amounts larger than those specified on the label, for this case to go anywhere, he said.
"The argument is an extreme stretch, treading greatly upon the exclusive enforcement powers of the FDA and depending on implied rather than express falsehood. The express label claim is true under federal regulation. It is only an alleged implication that is false."
The complaint should be dismissed
He added: “The complaint should be dismissed for failure to state a claim on which relief may be granted. Even if it is not dismissed on that basis, the burden of proof is on the plaintiff to show that, indeed, consumers in fact use the product beyond the serving size specified on the label believing it to be fat and calorie free even at multiples of the serving size amount.
“That requires survey evidence to prove the implication one common among consumers, a costly enterprise and one likely impossible to achieve. Even if the complaint is not dismissed at the outset, I suspect it will be highly likely that a Court would grant a pre-trial motion for summary judgment against the plaintiff for want of essential evidence.”
ConAgra: We stand behind the accuracy of our labeling and believe this suit to be without merit
Rebecca Cross, an attorney at San Francisco-based law firm BraunHagey & Borden LLP agreed that Allen's chances were slim given that the spray's label claims appeared to comply with federal food labeling legislation.
Some groups such as the Center for Science in the Public Interest (CSPI) are urging the FDA to look again at serving sizes so that they more accurately reflect what consumers actually eat, she acknowledged. "But in the meantime, the current rules stand."
Ivan Wasserman, a Washington DC-based attorney at law firm Manatt, Phelps & Phillips, and Justin Prochnow, an attorney in the Denver office of law firm Greenberg Traurig, also predicted that the case would likely be pre-empted.
A ConAgra spokesperson said: “We stand behind the accuracy of our labeling and believe this suit to be without merit.”
The lawsuit (Erin Allen v CpnAgra Foods Inc), was filed in the Northern District of California on March 21.