Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Slack fill

Ninth Circuit Finds Grounds to Dismiss Iced Coffee False Advertising Suit

By Lawrence Weinstein and Russell Kostelak on Posted in Class Actions, Labeling Claims
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 … Continue Reading

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

By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Regulatory
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

By Lawrence Weinstein and Daniel Werb on Posted in Deceptive Trade Practices, Labeling Claims
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

By Lawrence Weinstein and Lee Popkin on Posted in Deceptive Trade Practices, Labeling Claims
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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