I Can’t Believe It’s Not Butter.

Plaintiff brought an action against a food manufacturer and a grocery chain for product mislabeling in violation of California Milk and Milk Products Act of 1947 [Food & Agricultural Code section 32501; MMPA] alleging products called “spreadable” butter are not butter. Defendants contend the action is preempted by federal food labeling standards. The trial court found plaintiff’s California claims were preempted. Plaintiff requested leave to amend to allege violation the California Sherman Food, Drug and Cosmetic Law [Health & Safety Code section 109875; Sherman Law]. The trial court denied leave to amend. The appellate court affirmed, stating: “We conclude that the labeling requirements of the . . . MMPA are not identical to the applicable federal labeling requirements and therefore plaintiff’s claims under the MMPA are preempted; that plaintiff‘s mislabeling claims under the . . . Sherman Law are not preempted by federal law; and that the trial court did not abuse its discretion in denying leave to amend to allege claims based on violation of the Sherman Law because, as a matter of law, plaintiff has failed to demonstrate that a reasonable consumer would be misled by the labels on the products.” (Simpson v. The Kroger Corporation  (Cal. App. Second Dist., Div. 4; September 25, 2013) 219 Cal.App.4th 1352.)