Simpson

The issue in this case is whether products produced by defendant Challenge Dairy Products, Inc., and sold by defendant The Kroger Corporation in its supermarkets, which combine butter with canola oil or olive oil, are mislabeled under state and federal law. In her opening brief, plaintiff Mary L. Simpson claims the products are not “butter” and that they were mislabeled in violation of federal and state law by being labeled “spreadable butter with” either canola oil or a combination of canola and olive oil. In her reply brief, plaintiff changes her theory and asserts that her claim is that the additional oils are not identified with requisite prominence on the labels. Defendants argue that the California food labeling statutes under which plaintiff sues are preempted by federal food labeling standards. They contend that under controlling federal law, the products are properly labeled with their usual and common names, i.e., butter with canola oil or with olive and canola oil.

We conclude that the labeling requirements of the Milk and Milk Products Act of 1947 (Food & Agr. Code, § 32501 et seq.; MMPA) are not identical to the applicable federal labeling requirements and…