FDA regulations set out different “serving sizes” that should be used on nutrition labels for different categories of food. In the “Fats and Oils” category, regulations have different sizes for “Butter, margarine, oil, shortening,” “Butter replacement, Powder,” and “Spray types.”
Consumers sued the makers of “I Can’t Believe It’s Not Butter! Spray” contending that the serving size used on the label was misleadingly low– referring to “1 spray” for a cooking spray application, or “5 sprays” when used as a topping. The plaintiffs argued though that, to equal one standard serving of butter, a consumer would need to use 40 sprays of the product.
Today, the Ninth Circuit held that, under the FDA’s regulations, though, the product falls into the “spray type” category, even if marketed as a butter replacement. And since the serving size used on the label was consistent with the FDA regulations for “spray types,” the FDCA preempted their California law claims.