*  But then again, I’m a lawyer.

In the fifth episode of "The Hitchhiker’s Guide to the Galaxy", by Douglas Adams, Peter Jones played The Book.  At one point, The Book gives some "helpful" information about the universe.  First, that it is infinite.  Next, it goes on to prove, through comical science and mathematics pulled out of Douglas Adams’ unique brain, that the number of imports, exports, rainfall, population and monetary units in the universe is, in each case, "none." 

My favorite is the explanation of why there is no population. 

It is known that there is an infinite number of worlds, but that not every one is inhabited.  Therefore, there must be a finite number of inhabited worlds.  Any finite number divided by infinity is as near to nothing as makes no odds, so if every planet  in the Universe had a population of zero then the population of the Universe must also be zero, and any people you may actually meet from time to time are merely the products of a deranged imagination.

Douglas Adams died in 2001, eons too early at the age of 49, but I am fairly certain he would have given a rueful chuckle to the case of Pardini v. Unilever US, Inc., decided by the United States District Court for the Northern District of California on July 9. 

The case involved "I Can’t Believe It’s Not Butter! Spray".  This is a product, as the court takes judicial notice, that is "dispensed via manual pump, with each pump delivering a squirt of oil." 

According to the complaint, the first three listed ingredients are water, liquid soybean oil and sweet cream buttermilk, the latter of two presumably including fat. The plaintiff claimed that each bottle contains 771 calories and 82 grams of fat, making fat 24% of the product by weight.  Nonetheless, both the packaging and the "Nutrition Facts" claim "0 Calories" and "0 Fat".  Which plaintiff then claimed violated the Federal Food, Drug and Cosmetic Act, 21 USC § 301 et seq.   So can a product that is nearly one-quarter fat legally claim no fat? 


The key to this is serving size.  The plaintiff claimed "that Defendant used unlawful serving sizes so that it could round down to zero ICBINBS’s fat and calories per serving."  The court, however, held that the serving sizes were lawful under FDA regulations, even though their effect is exactly what the plaintiff claimed.  The plaintiff argued that the FDA recommended serving size for a spray is 0.25 grams but the serving size for this product is 0.20 grams.  But one pump of the spray is in fact 0.20 grams.  As the court said, "it would not make any sense for Defendant to list a serving size of 1.25 sprays (0.25 grams), since a consumer could not dispense a quarter of a spray."  But even if 0.25 grams were used, "so long as the basic laws of physics apply, there is no possible way that 0.25 grams of any substance could have more than 0.5 grams of fat."  (emphasis supplied)

The half a gram issue derives from the remarkably clear statement in 21 CFR § 101.9.(c)(2) defining what is to be disclosed on a label as to fat:

(2) "Fat, total" or "Total fat": A statement of the number of grams of total fat in a serving defined as total lipid fatty acids and expressed as triglycerides. Amounts shall be expressed to the nearest 0.5 (1/2) gram increment below 5 grams and to the nearest gram increment above 5 grams. If the serving contains less than 0.5 gram, the content shall be expressed as zero.

(emphasis, again, supplied)

In other words, Unilever not only was entitled to claim that its spray had zero grams of fat per serving, it was required to.  As you contemplate the idea that a product that is nearly 25% fat by weight must, by law, make the claim that it has no fat, consider whether Douglas Adams had a gift for understatement.