A label contains an accurate net weight of the amount of product inside. The packaging is clear, allowing consumers to view a pump mechanism common in the cosmetics world. So, where’s the deception?

According to the Southern District of New York – there is none. In Critcher et al. v. L’Oreal USA, Inc., et al., 1:18-cv-05639 (S.D.N.Y.), the Court recently held that reasonable consumers would not be deceived by a cosmetics bottle utilizing a pump dispense mechanism.

The plaintiffs claimed that the pump mechanism prevented them from being able to access the entire product inside of the bottle. But Judge Koeltl was not swayed. He held that consumers are familiar with pump dispensers on personal care products such as soaps, shampoos and lotions, and are therefore aware that “they will not be able to extract every bit of product from such containers.” Accordingly, the court held that a “reasonable consumer” would not be deceived by the packaging of the products, and that plaintiffs’ alleged “disappointment” did not “establish deception” or “transform [L’Oreal’s] accurate labeling of the product’s net weight into fraud by omission.”

The Court also found that plaintiffs’ claims were preempted by the Federal Food, Drug and Cosmetics Act (“FDCA”). Because federal law permits – and requires – L’Oreal to label its cosmetics products with the net quantity of the containers’ contents irrespective of the amount accessible through the pumps, the labels followed the “federal regulatory scheme [that] addresses measurement and labeling of product quantity head-on.” And since plaintiffs were seeking labeling that was different from the labeling requirements set forth in the FDCA, their claims were expressly pre-empted.

The Critcher decision comes on the heels of two recent dismissals of slack fill class actions in the Southern District. Last year, Ad Law Access covered Daniel, et al. v. Tootsie Roll Industries LLC, Case No. 1:17-cv-07541, 2018 WL 3650015 (S.D.N.Y. Aug. 2, 2018), in which plaintiffs claimed that different-sized boxes of Junior Mints contained between 35 to 43 percent of empty air. (link here to blog post). Judge Buchwald rejected these allegations, finding that no reasonable consumer would have been deceived because the Junior Mints boxes “provide more than adequate information for a consumer to determine the amount of product contained therein” and that the weight of the candy was “prominently displayed on the front” of each box. Id. at *11-12. Judge Buchwald then questioned the validity of slack fill cases more generally where the product’s label accurately reflects the weight of the product: “[C]onsumers are not operating on a tabula rasa with respect to their expectations of product fill. To the contrary,…‘no reasonable consumer expects the weight or overall size of the packaging to reflect directly the quantity of product contained therein.’….The law simply does not provide the level of coddling plaintiffs seek, [and] the Court declines to enshrine into the law an embarrassing level of mathematical illiteracy.” Id. at *13.

Similarly, in Hu v. Iovate Health Sciences, U.S.A., Inc., 2018 WL 4954105 (S.D.N.Y. Oct. 12, 2018), plaintiff alleged that a protein powder sold by the defendant was packaged in containers that were not adequately filled, yielding a slack fill of 41 percent, but conceded that the package accurately disclosed the amount of protein powder inside. Citing Daniel, Judge Ramos stated that “generally, courts within this District have found that labels on packages that clearly indicate the product’s weight prevent plaintiffs from succeeding on non-functional slack-fill claims.” Id. at *2. Given the accuracy and prominence of the label’s statement of net weight, Judge Ramos concluded “that the allegedly nonfunctional slack fill would not mislead a reasonable consumer acting reasonably under the circumstances.” Id. at *3.

The Critcher decision marks another welcome victory for cosmetics and consumer product companies, and demonstrates that judges (at least those in the Southern District) are viewing slack fill claims with increasing skepticism and willing to dismiss them at the pleadings stage.