(Okay– so this one isn’t specifically a “cosmetics” case– but its provides some good “Take Away” points) Last Friday (Aug. 19, 2016), a California federal judge dismissed a proposed class action against Starbucks based on its purported trickery of under filling its cups with actual liquid, explaining that a reasonable consumer would expect a cold drink to include both the liquid and ice. In its order the court determined:
Starbucks has not stated that its Cold Drinks contain a specific amount of liquid. Instead, Starbucks has stated that its iced drinks, which contain some amount of liquid and some amount of ice, are offered for sale in cups of various sizes.
Likening the situation to a young child’s understanding, the court ruled there was no merit to the plaintiff’s allegations that Starbucks defrauds consumers by filling cold liquid up to a certain level, then tops off the remaining space in the cup with ice:
But as young children learn, they can increase the amount of beverage they receive if they order “no ice.” If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the Court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will include both ice and tea and that for a given size cup, some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.
For these same reasons the court rejected the plaintiff’s allegations that a “reasonable consumer” would expect that the size of Starbucks’ cold beverages would represent only the amount of the beverage and exclude the amount of ice.
For the same reasons that a reasonable consumer would understand that the iced beverage that consumer might order from Starbucks will contain some portion of liquid and some portion of ice in the designated cup size the Complaint fails to state sufficient well-pleaded facts that Starbucks has made any misrepresentation, or that a reasonable consumer could justifiably rely on the statements Starbucks makes concerning the sizes of its Cold Drinks to conclude that those sizes represent only the amount of beverage and exclude the amount of ice.
Similarly, the court also rejected the plaintiff’s breach of express warranty claims, ruling that Starbucks had made no representation that its iced drinks contain a specific amount of liquid, but instead “offered for sale in cups of various sizes.” Accordingly, the court explained that the plaintiff’s strained interpretation of Starbucks’ menu “does not form the ‘basis of the bargain.'”
The case is Alexander Forouzesh v. Starbucks Corporation, case number 2:16-cv-03830, in the U.S. District Court for the Central District of California.
Take away: This is a decent ruling for the defense. It shows that if a child understands the reality of things, that a plaintiff’s strained interpretation of a defendant’s advertising may be rejected through early dispositive motions. Also, the dismissal turned on the content of Starbucks’ advertising and claims– a fact which re-emphasizes the importance of the words, imagery, and placement of claims. Which leads me to a point I often repeat– get legal involved in reviewing your advertising, marketing collateral, website, and labels early on. Not only does doing so help to catch potential FDA/FTC regulatory mistakes, but it also helps to mitigate/minimize litigation risks.
Cosmetics & The Law 