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 largely similar, the amended opinion includes new language that may have implications for slack-fill actions going forward.

As our readers may recall, 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. Sugar lip balm, which comes in a variety of colors and retails for approximately $22.50–$25 per unit, is sold in a weighty metallic tube dispenser and packaged in a cardboard box. In the original Ninth Circuit opinion, the panel held that the non-functional slack-fill claim failed because plaintiff was not actually alleging that a portion of the container was empty, but rather that a portion of the lip balm product was inaccessible due to a mechanical feature of the container.

In the amended opinion, the panel included new paragraphs explaining that the plaintiff’s claims were distinguishable from those in Williams v. Gerber Prods. Co. (a Ninth Circuit case holding that an ingredient list could not “shield” deceptive front labeling, previously mentioned here) because unlike in Williams, the Sugar product did not have other deceptive labeling to be dispelled. To the contrary, Sugar’s weight label complied with federal and California law, and it did not contradict other representations or inferences on the packaging. The court held that in the absence of words, pictures, diagrams, or other depictions about lip balm accessibility adorning the package, there was no plausible claim under the reasonable consumer standard.

Ebner v. Fresh differs from some slack-fill actions because it involved inaccessible product rather than empty space in the packaging. Nevertheless, the amended language has already been applied in at least one run-of-the-mill slack-fill case. In Bush v. Mondelez Int’l, plaintiff alleged that certain Go-Pak products (such as Mini Oreo) had container sizes that led consumers to believe that there was more snack food than was actually contained therein, despite plaintiff’s admission that the product labels accurately disclosed the products’ net weights. In dismissing the claim, the district court for the Northern District of California wrote that “[n]o reasonable consumer expects the overall size of the packaging to reflect precisely the quantity of product contained therein,” and cited to Ebner v. Fresh in support of its holding that in the absence of other indications of snack quantity on the package aside from admittedly accurate net weight disclosures, it is not plausible that reasonable consumers would be misled into thinking the container would be “packed to the brim with snack.”

In sum, it appears that courts in California may now be approaching slack-fill suits with greater incredulity where a manufacturer accurately labels its product’s net weight. Watch this space for further developments.