Rejects plaintiff claims that coffee chain inflated ounces of cold drinks

Pouring Violations

Back in June 2016, Alexander Forouzesh filed a class action complaint against Starbucks in Los Angeles County Superior Court, alleging that “a Starbucks customer who orders and pays for a Cold Drink receives much less than advertised – often nearly half as many fluid ounces.”

At the heart of the complaint is the standardized process by which Starbucks baristas create cold or iced drinks. First, the suit alleges, the base liquid is poured into clear cups with line markings that correspond to the sizes offered by the chain – tall, grande, venti and trenta. Once the liquid reaches the appropriate line, the barista uses specially designed scoops to add predefined amounts of ice to the cup.

Forouzesh alleges that the amount of liquid required to fill to the lines is significantly less than the advertised fluid ounces in a given cup size and disguised by the addition of ice; for instance, “a Starbucks customer who orders and pay [sic] for a Venti iced coffee, expecting to receive 24 fluid ounces of iced coffee based on Starbucks’ advertisement and marketing, will instead receive only about 14 fluid ounces of iced coffee.”

Forouzesh slapped the coffee chain with charges including breach of express warranty, breach of implied warranty of merchantability, negligent misrepresentation, unjust enrichment, fraud, and violation of California’s Consumers Legal Remedies Act, Unfair Business Practices Act and False Advertising Law.

A Child Will Lead Them

After the case was moved to California’s Central District, Starbucks filed a motion to dismiss. The Central District embraced the motion in its entirety.

The court’s August 2016 judgment began by disposing of the Consumers Legal Remedies Act, Unfair Business Practices Act and False Advertising Law charges. The court stated that all three laws are governed by the “reasonable consumer” test and argued that no reasonable consumer could be deceived into believing that the drinks in question contain the full liquid ounces of fluid advertised. “As young children learn,” the court maintained, “they can increase the amount of beverage they receive if they order ‘no ice.’” If children understood this basic principle, the court argued, a reasonable consumer would not be deceived in the manner described by the plaintiff.

The rest of the charges fell based on this initial observation. Because no reasonable customer would be so deceived, the court argued, the complaint failed to maintain that Starbucks was making a misrepresentation in the first place, leaving fraud and negligent misrepresentation by the wayside. Likewise, with the express and implied warranty claims, “Plaintiff has alleged no well-pleaded facts suggesting that Starbucks has stated, or expressly warranted, that its Cold Drinks contain a specific amount of liquid. As a result, there is no statement by Defendant of any ‘fact or promise’ that it has breached that forms the basis of the bargain.”

Forouzesh appealed the judgment.

The case reached its end in March 2018, when the Ninth Circuit affirmed the Central District’s judgment. The circuit court stated simply that “the statutory claims fail as a matter of law because no reasonable consumer would think (for example) that a 12-ounce ‘iced’ drink, such as iced coffee or iced tea, contains 12 ounces of coffee or tea and no ice.” The circuit court let go of the fraud claim as well “because (even assuming that there was a representation) justifiable reliance is absent.” It also tossed the warranty claim because the plaintiff never alleged that Starbucks promised a specific amount of liquid in the products.

Finding that the district court was permitted to deny leave to amend the complaint, the Ninth Circuit brought the appeal to a close.

The Takeaway

The Ninth Circuit was quick and clear in affirming the dismissal of all the plaintiff’s claims. There has been a large number of class actions against food companies for somewhat similar, “slack-fill” practices – using a package larger than is necessary to hold the product contents and filling the rest with air. This case is distinguishable, as the ice is itself a product component of iced coffee, which when melted becomes part of the beverage. Nonetheless, the reasonable consumer standard, when applied to some slack fill facts, may help food manufacturers win the day. For instance, a bag of chips that is clearly not entirely full of chips would not reasonably be thought to be full of chips.

Like all cases of potential deceptive advertising, the issue is the net impression of the reasonable consumer under the circumstances.