In Buso v. ACH Food Companies, Inc., 2020 WL 1929024 (Apr. 20, 2020), the US District Court for the Southern District of California dismissed a putative slack-fill class action against ACH Food Companies because the packaging of its cornbread mix displayed the product's net weight and gave consumers a "rough estimate of cornbread that could be made from the product contained within the box."
In his complaint, the plaintiff alleged that ACH violated consumer protection laws barring deceptive and false advertising because its opaque boxes contained 50% of "non-functional" empty space that supposedly misled consumers as to the amount of product in the boxes. ACH moved to dismiss under Fed. R. Civ. P. 12(b)(6) on the ground that the plaintiff could not plausibly allege a reasonable likelihood of deception because the boxes accurately disclosed "the net weight and yield of the mix on the packaging."
The court dismissed the plaintiff's claims with prejudice to the extent they were based on the "reasonable consumer" deception theory, finding it would have been unreasonable for a consumer to be deceived because the front label "disclose[d] the product's net weight and approximate number of servings per container," and the "rear label indicate[d] that the box contains enough cornmeal mix to make one 8-in[ch] square loaf of cornbread or 12 standard cornbread muffins."
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