Recently, the Ninth Circuit affirmed a district court’s dismissal of a putative class action claiming that Starbucks deceived its customers by under-filling the liquids in its iced drinks and adding ice to make the cups appear full. Forouzesh v. Starbucks Corp. The Ninth Circuit held that “no reasonable consumer would think (for example) that a 12-ounce ‘iced’ drink, such as iced coffee or iced tea, contains 12 ounces of coffee or tea and no ice.”

Plaintiff sued Starbucks in the Central District of California, alleging that Starbucks was under-filling the liquids in its iced drinks. For example, Starbucks’ website allegedly advertised that customers would receive twelve fluid ounces in a “Tall” iced coffee but, according to the complaint, Starbucks’ standard practice was to include less than twelve fluid ounces of liquid in the drinks, with ice making up the remainder.

In 2016, the district court found that plaintiff’s claims did not pass muster because no reasonable consumer would think that a 12-ounce drink of iced coffee would contain 12 ounces of liquid and no ice.  2016 WL 4443203 (C.D. Cal. Aug. 19, 2016). The district court stated that if “children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive,” then a reasonable consumer would not be deceived into thinking that a 12-ounce iced coffee would contain only liquid, not ice. To support this conclusion, the district court noted that Starbucks’ iced drinks were served in clear cups, and that neither Starbucks’ menu nor its signage stated that a 12-ounce iced drink contains 12-ounces of liquid.

The Ninth Circuit affirmed the district court in a short, unpublished opinion, agreeing that no reasonable consumer would think that a 12-ounce “iced” drink contains only liquid and no ice. The Ninth Circuit’s affirmance was hardly a surprise in light of facts before it, but any Ninth Circuit affirmance of a motion to dismiss a putative class action is noteworthy. Besides, although “slack-fill” suits have been popular in the last few years, quite a large number of them appear to be implausible, and perhaps this outcome will give pause to some proponents of these suits in the plaintiff’s bar. Watch this space for further developments.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671.  We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.