A New York District Court dismissed the complaint of Anna Wurtzburger against fast food staple KFC over the size of KFC’s $20 “fill up” bucket. Wurtzburger alleged she purchased KFC’s “fill up” bucket meal advertised as consisting of “an eight piece bucket of chicken,” relying on the advertisement’s depiction of a bucket that may have appeared to be overflowing with chicken. However, when she received the meal and discovered that the bucket’s eight pieces of chicken did not fill the bucket to the rim, she sued KFC under New York’s General Business Law §§ 349, 350 and the federal Food, Drug, and Cosmetic Act for purportedly misleading consumers. She claimed that KFC either should have used a smaller bucket such that the eight pieces of chicken would have filled it to the rim, or given her more chicken than the bargained-for eight pieces to fill the larger bucket.

The Court balked at Wurtzburger’s allegations and granted KFC’s motion to dismiss for failure to state a claim. It held that the Complaint’s assertion that the bucket of chicken Wurtzburger purchased could hold more chicken than the eight pieces she paid for was simply insufficient under the statutes. Using an objective reasonable consumer standard, the Court found KFC’s alleged practice of using a larger than necessary bucket is not materially deceptive or misleading “especially when the consumer ordered, purchased, and received the precise number of items requested.” As consumer protection actions go, this one flew the coop.

Takeaway: Allegations that product packaging could hold more product than they actually contain, without more, are insufficient to state a claim under New York’s consumer protection statutes.