A D.C. federal court has denied McCormick & Co.’s motion to dismiss a competitor’s lawsuit alleging the company’s black-pepper packaging contains too much slack fill. In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig., No. 15-1825 (D.D.C., order entered October 17, 2016). The lawsuit is part of multidistrict litigation joining several consumer class actions with similar allegations.

McCormick challenged Watkins Inc.’s standing to sue and asserted that the company failed to state a claim under the Lanham Act, arguing that its packaging does not constitute advertising. The court disagreed, noting, “McCormick argues that size of its pepper tins is not commercial speech, but it is difficult to understand how the size of a package or container could possibly not be considered a form of ‘advertising or promotion.’ [] The size of a package signals to the consumer vital infor- mation about a product and is as influential in affecting a customer’s choices as an explicit message on its surface.”

The court also found support for Watkins’ standing to sue under the Lanham Act and Minnesota law, but it granted McCormick’s motion to dismiss the claim of common law unfair competition because Watkins did not contest McCormick’s argument. Details on Watkins’ complaint appear in Issue 568 of this Update, and additional information on a subsequent consumer putative class action appears in Issue 569.