Wednesday, December 20, 2017

We're not gonna need a bigger bucket: lawsuit against KFC dismissed

Wurtzburger v. Kentucky Fried Chicken, No. 16-CV-08186, 2017 WL 6416296 (S.D.N.Y. Dec. 13, 2017)

Wurtzburger sued KFC for alleged violations of General Business Law §§ 349, 350 and 21 C.F.R. § 100.100 by misleading consumers into believing that KFC’s buckets of chicken were are filled to the rim. She bought, inter alia, $20.00 “fill-up” bucket meal of chicken that was advertised as consisting of “an eight piece bucket of chicken” and “stated that the meal could feed your whole family,” but the ad displayed a bucket overflowing with chicken, and her bucket was not overflowing.

Using an objective reasonable consumer standard, the court found no plausible claim.  Wurtzburger didn’t claim that she received less than eight pieces, which was the amount she bargained for. The use of a larger than necessary bucket wouldn’t be materially deceptive or misleading “to a reasonable consumer acting reasonably under the circumstances,” especially where the consumer “ordered, purchased, and received the precise number of items requested.” Allegations that the phrase “the meal could feed your whole family” was misleading were conclusory and without merit.

Wurtzburger’s allegation that she suffered personal injury/acid reflux as a result of buying the chicken were also insufficient to establish the injury sought to be addressed by the statutes.

21 C.F.R. § 100.100 covers branding on containers, and provides that a food is misbranded “[i]f its container is so made, formed, or filled as to be misleading.” A container is misleading if its contents cannot be fully viewed and it contains “nonfunctional slack-fill,” which is further defined by the regulation.  GBL § 349 can encompass claims of excessive slack-fill, but it is a “complete defense that the act or practice is ... subject to and complies with the rules and regulations of, and the statutes administered by, ... any official ... agency of the United States as such rules, regulations or statutes are interpreted by ... the federal courts.” Alleging that the bucket Wurtzburger bought could hold more chicken was insufficient to state a claim for non-functional slack-filling; at a minimum, she needed to allege facts showing that KFC used slack-filling in a manner outside of the enumerated permissible uses under the regulation.

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