Four consumers have filed a putative class action against Barilla S.p.A. alleging the company sells its specialty pasta and standard pasta products in nearly identical boxes but underfills the specialty boxes, amounting to unpermitted slack fill. Berni v. Barilla S.p.A., No. 4196 (E.D.N.Y., filed July 28, 2016).

In addition to its traditional pasta products, Barilla sells gluten-free, “Protein Plus” and whole-grain varieties of pasta. The specialty and traditional pastas appear to be sold in similar amounts, the complaint asserts, but the specialty boxes actually contain less pasta—while one box of penne contains 454 grams, for example, the “Protein Plus” variety contains 411 grams and the gluten-free version contains 340 grams, despite being sold in similarly sized boxes. This discrepancy results in the specialty boxes including about 10 to 25 percent non-functional slack fill, the plaintiffs allege. For an alleged violation of the New York Business Code and an unjust enrichment claim, the plaintiffs seek class certification, restitution, attorney’s fees and an injunction requiring Barilla to repackage the pastas.