Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Slack fill

When the Strength of the Facts Cannot be Lifted – SDNY Dismisses Muscle Maker Slack-Fill Class Action

The Southern District of New York recently dismissed a putative class action against Cytosport, the maker of Muscle Milk protein powder. The plaintiff, Orlando Bautista, alleged that he bought a container of Muscle Milk protein powder for $28 but was “surprised and disappointed” to discover that the package contained roughly 30% empty space. The suit … Continue Reading

Accurate Net Weight Disclosures May Defeat Slack-Fill Claims in California

Last April, we reported on Ebner v. Fresh, Inc., in which a Ninth Circuit panel held that the plaintiff failed to state a claim that Sugar lip balm packaging was misleading because it contained non-functional “slack-fill.” Last month, the Ninth Circuit rejected plaintiff’s petition for rehearing en banc but also amended its earlier opinion. Though … Continue Reading

Not Sweet Enough: Ninth Circuit Tosses Claims Over Fresh Sugar Lip Balm Labeling and Packaging

Plaintiff Angela Ebner filed a putative class action against Fresh, Inc. alleging that the label, design and packaging of its Sugar lip balms deceived consumers about the amount of available product. In a published panel decision, the Ninth Circuit affirmed the district court’s ruling dismissing the plaintiff’s complaint in its entirety. Sugar lip balm, which … Continue Reading
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