Kym Pardini v. Unilever United States, Inc., 65 F.4th 1081

Background

Product: "I Can’t Believe It’s Not Butter! Spray" ("Butter! Spray") is a butter-flavored vegetable oil dispensed from a pump-action spray bottle; marketed for topping and cooking.
Labeling: Front label states 0 calories and 0 g fat per serving; nutrition panel lists serving sizes as 1 Spray (0.20 g) for cooking and 5 Sprays (1 g) for topping, each shown as 0 calories and 0 g fat.
Plaintiffs’ claim: State-law consumer class action alleging the serving sizes are artificially small and misleading because a full 12-oz bottle allegedly contains ~1,160 calories and 124 g fat; they contend the product should be treated like butter (1 tbsp) for serving-size purposes.
Procedural posture: District court dismissed plaintiffs’ serving-size and nutrient-content claims under Rule 12(b)(6), holding the product is a FDA-designated "spray type" fat or oil and the FDCA preempts the state-law claims; plaintiffs appealed.
Ninth Circuit holding: Affirmed dismissal — Butter! Spray properly falls in the FDA "spray type" category, the labeled serving sizes comply with FDA regulations, and plaintiffs’ state-law claims are preempted by the FDCA.
Dissent: Judge Lucero would reverse, arguing Unilever failed to meet its burden to prove categorization as "spray type," and that consumers may reasonably use more than a single spray; he relied on FDA guidance distinguishing nonstick cooking sprays from products used as toppings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Proper FDA product category ("spray type" v. "butter/margarine/oil")	Butter! Spray is a butter substitute used interchangeably with butter and should be categorized like butter (1 tbsp).	Product is dispensed in a spray mechanism and fits the FDA "spray type" subcategory; label uses a common-household measure ("spray").	Held for Unilever: product is a "spray type" fat/oil as a matter of law on the complaint facts.
2. Serving-size appropriateness (customary usage)	Serving sizes are unrepresentatively small; customary usage (topping/ingredient) requires larger serving (e.g., tablespoon).	FDA sets reference amounts by product category based on national consumption surveys; manufacturers must follow category-based serving sizes.	Held for Unilever: serving-size legality is a legal question tied to FDA category; no well-pleaded allegation that consumers customarily use 40 sprays.
3. Nutrient-content claims ("0 calories/0 g fat")	Representations are misleading because larger, realistic servings contain substantial calories/fat.	FDA regulations permit (or require) stating zero for <5 calories and <0.5 g fat per serving; Butter! Spray falls below those thresholds per listed servings.	Held for Unilever: nutrient claims comply with FDA rules and thus state-law challenges are preempted.
4. Preemption and burden of proof on defendant	FDCA should not preempt state consumer-protection claims when labeling is deceptive; factual disputes exist about usage and category.	FDCA preempts state laws that would impose labeling requirements different from federal regulations; defendant may raise preemption on Rule 12(b)(6) where it appears on the face of the complaint.	Held for Unilever: FDCA express preemption bars plaintiffs’ serving-size and nutrient-content claims; defendant met preemption defense at pleading stage.

Key Cases Cited

Nix v. Hedden, 149 U.S. 304 (1893) (introductory analogy on food classification)
Riegel v. Medtronic, 552 U.S. 312 (2008) (federal law can preempt state-law claims)
Lilly v. ConAgra Foods, Inc., 743 F.3d 662 (9th Cir. 2014) (distinguished — FDA regs can resolve labeling scope questions)
Nguyen v. Endologix, Inc., 962 F.3d 405 (9th Cir. 2020) (standard of review for Rule 12(b)(6))
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard)
Durnford v. MusclePharm Corp., 907 F.3d 595 (9th Cir. 2018) (preemption can appear on the face of the complaint)
Reid v. Johnson & Johnson, 780 F.3d 952 (9th Cir. 2015) (preemption burden principles discussed in dissent)