after experts excluded, slack fill class action fails

Krause-Pettai v. Unilever United States, Inc., --- F.Supp.3d ----, 2023 WL 6429805, No. 20-cv-1672-AGS-BLM (S.D. Cal. Sept. 30, 2023)

This case is about “nonfunctional slack fill,” or useless empty space, inside underarm-deodorant sticks. The court rejected the claim on summary judgment despite not finding it completely preempted.

Both the FDCA and California’s Sherman Food, Drug, and Cosmetic Law set the same baseline requirements for drugs and cosmetics: an item is “misbranded” if “its labeling is false or misleading in any particular” or if its “container” is “filled as to be misleading.” Because the Sherman Law’s standard “is identical to” the FDCA’s, it is not preempted. But the California Fair Packaging and Labeling Act (CFPLA) is explicitly preempted because it states that any opaque container is “misleading” if “it contains nonfunctional slack fill,” with some exceptions. Such a per se rule was not identical to the FDCA. That is, a state legislature can’t determine that something within the FDCA’s scope is misleading as a matter of law.

But the preemption wasn’t complete. The FDA’s failure “to issue specific regulations” about nonfunctional slack fill does not mean manufacturers may make cosmetics with “any” amount of it, even refrigerator-sized deodorant sticks that are 99% empty. “[M]ere deliberate agency inaction—an agency decision not to regulate an issue—will not alone preempt state law.”

On to the merits. The court excluded plaintiffs’ experts. The expert on product packaging didn’t adequately explain his testing methodology or resolve apparent contradictions in his reports about how many different products he tested; he didn’t have written records of what he did.

As for the consumer perception expert, plaintiffs offered his opinions that: (1) consumers “spend limited time examining package labeling information” and generally “assume that larger packages contain a larger quantity of a product”; (2) “[n]et weight labeling information on product packages is rarely examined (or understood) by consumers”; and (3) due to these consumer tendencies and “general unfamiliarity with the concept of slack fill, the relevant Unilever product package features suggest” that Unilever consumers got “less product than they might have anticipated.” But he didn’t seem familiar with the facts; plaintiffs’ central allegation was that Unilever’s sticks were in larger packaging than competitors’ with the same net weight, but he claimed that Unilever’s products “are roughly the same size (or larger) than those used by its competitors,” but “contain less actual product.” He also apparently never examined the deodorant and antiperspirant market, focusing his research mainly on food and beverages; his two studies of grocery-shopping habits that looked slightly beyond that didn’t provide much help, because one of them lumped everything together, while, in the other, the two non-food items—shampoo and toothpaste—had the longest average selection times, with shoppers spending twice as long choosing shampoo as bananas. “If anything, these results suggest that food-buying habits don’t apply equally to other commodities.” Thus, the adequacy of his data was concerning, and plaintiffs didn’t explain why his results could be generalized to deodorant buyers.

With the experts gone, plaintiffs’ deposition testimony that they were deceived was insufficient to show that reasonable consumers were likely to be deceived, because they were “unaccompanied by other pertinent evidence of deception. By contrast, the testimony of even a single individual may suffice if paired with patently false marketing or relevant extrinsic evidence.” Here, each product was labeled with its actual net weight, which could be used for value comparisons, and there were no relevant surveys.

“With so little positive proof, plaintiffs cannot make their case. And that’s before taking stock of the countervailing evidence that undercuts their theory of deception.” First, there was no comparative evidence to corroborate plaintiffs’ claims that Unilever is an outlier and that its competitors suffer lost sales due to their more aboveboard packaging. Unilever “introduced compelling comparative evidence” that its “Dove and Degree sticks are generally in line with competing products.” Second, Unilever’s evidence that “from 2016 to 2022, there were zero complaints from California consumers concerning the empty space in the products at issue” was “highly relevant,” and it wasn’t hard to discover given that all four plaintiffs became suspicious because Unilever’s sticks seemed top-heavy. Third, Unilever’s expert testified that any slack fill in the sticks at issue was functional.