WHAT IF I PURCHASED A PRODUCT THAT DOESN’T CONTAIN THE ADVERTISED AMOUNT?

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From time to time, a consumer may purchase a product advertised as containing a certain amount or quantity, and then learn upon opening the package that there is less of the product than advertised.  Some may chalk this up to “shrinkflation,” but there is a difference between making a product smaller and advertising it as such, and misrepresenting a product’s quantity.

California’s consumer protection statutes provide for a robust framework to hold companies accountable for underfilling products.  Signature amongst California’s statutes is California’s Legal Remedies Act (the “CLRA”) set out at California Civil Code, §§ 1750-1784.  The CLRA is meant “to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.”  Section 1770(a)(5) makes it unlawful to represent “that goods . . . have . . . characteristics . . . or quantities that they do not have.”  Additionally, Section 1770(a)(9) prohibits companies from “advertising goods or services with intent not to sell them as advertised.” 

The CLRA is complemented by California’s False Advertising Law (the “FAL”), California Business and Professions Code, § 17500, as well as California’s Unfair Competition Law (“UCL”), California Business & Professions Code § 17200.  The FAL prohibits the dissemination of any information “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.”  And the UCL, a broadly drawn statute, prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”

Importantly, there is also California’s Fair Packaging and Labeling Act (the “CFPLA”) set out in California Business & Professions Code, §§ 12601-12615.5.  Section 12606.2(b) states that “no food containers shall be made, formed, or filled as to be misleading.”  The statute further provides that “a container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack fill.”  Slack fill is defined as “the difference between the actual capacity of a container and the volume of product contained therein.”  Section 12606.2(c) outlines safe harbors for slack fill, such as when the existence of slack fill is due to “unavoidable product settling during shipping and handling.”       

The court’s decision in Stewart v. Kodiak Cakes, LLC, 537 F. Supp. 3d 1103, 1157 (S.D. Cal. 2021) illustrates how this statutory framework can be used to protect consumers.  In that case, a group of consumers alleged that Kodiak Cakes packaged its products in a manner that “conceals the amount of the product actually contained in the package and misleads consumers into believing there is more product inside the packaging than there actually is.”  Specifically, the consumers alleged that “less than half of the packaging is full and thus misrepresents the amount of product within each package.”  In response, Kodiak Cakes made a number of fact-based arguments, including, for example, that a reasonable consumer would not be deceived. 

Ultimately, the court found that the consumers plausibly alleged their CLRA, FAL, and UCL claims premised on California’s Fair Packaging and Labeling Act.  In doing so, the court determined that a “reasonable consumer does not don Sherlock Holmes garb to scrutinize an entire aisle filled with shelves of [] various pancakes by comparing the exact weight of each box’s content with the price across a dozen brands or shaking and manipulating each box to detect the nature of the hidden culinary treasure.”  It further stated that:  “Although consumers take into consideration certain labels and information provided on the packaging, consumers plausibly do not perform intense word-by-word detective work for each product they toss in their shopping cart.”

In light of California’s statutory framework and numerous court decisions like Stewart, California’s consumers may have recourse if a product they purchased is underfilled for an invalid reason.  Any consumer considering legal recourse should consult a qualified attorney who can evaluate the applicable laws, relevant legal developments, and specific facts of a given case.

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