statutory ban on nonfunctional slack fill doesn't show misleadingness/materiality as a matter of law

Clevenger v. Welch Foods Inc., 2022 WL 18228293, No.: SACV 20-01859-CJC (JDEx) (C.D. Cal. Dec. 28, 2022)

The court denied plaintiffs’ motion to exclude expert testimony in this consumer protection case about nonfunctional slack fill under the CLRA. Defendants’ consumer survey expert concluded that the slack fill was not a material factor impacting consumer purchase interest or perception of the price. Indeed, a “higher percentage of respondents were ‘definitely interested’ in purchasing” a smaller box of fruit snacks than the actual, larger box of fruit snacks, which “shows that the purported headspace does not impact the purchasing behavior of consumers and consumers are not misled into buying” the larger box. Based on a second consumer survey, the expert opined that “the first time that consumers purchased the fruit snacks boxes included in the survey, these consumers felt that the box contained the amount of product expected more than 84 percent of the time,” and that “only one respondent out of 566 (or 0.2 percent) answered that the box contained less product than expected and that the respondent did not purchase it again.”

Plaintiffs argued that the expert opinion was inadmissible as a matter of law, because the relevant statutes declared slack fill to be misleading, which also incorporated materiality. The court disagreed, because the CLRA claim was governed by the reasonable consumer test. “Whether a reasonable consumer is deceived cannot be determined unless and until all the circumstances surrounding the packaging of the product are considered.”

Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013), stated that “[t]he legislature’s decision to prohibit a particular misleading advertising practice is evidence that the legislature has deemed that the practice constitutes a ‘material’ misrepresentation, and courts must defer to that determination.” But this was not a holding that a legislative decision that a practice is misleading “must be treated as dispositive regarding materiality and thus shut the door on any further evidence or inquiry.”  Hinojos also said in a footnote that materiality was a fact issue rarely resolvable on a motion to dismiss. In context, “the Ninth Circuit was not precluding the presentation of evidence at trial on whether a particular misrepresentation was material to a reasonable consumer. It was merely stating what was sufficient to satisfy the economic injury pleading requirement for standing.”