court dismisses popcorn calorie/slack fill claims for failure to account for popcorn's compressibility

Borgen v. Hershey Salty Snack Sales Co., 2025 WL 2753734, No. 24-cv-1635-BJC-JLB (S.D. Cal. Sept. 2, 2025)

I just like the facts here: Plaintiffs alleged that defendants’ SkinnyPop popcorn has too much slack fill. In particular, they alleged that the brand name and package info led them to believe that “they could consume the portion sizes described on the bag and in the number of servings described in the bags.” But their personal experience and investigation allegedly show that the SkinnyPop bags contain “less popcorn than what Defendants promise” and thus short-sells the consumer. If the nutrition facts are correct, based on the actual popcorn present in the bags, they alleged that “there are significantly more calories per serving ... than advertised,” and the “SkinnyPop” name and the amount of calories in each serving is false and misleading

The court dismissed the claim as implausible, because reasonable consumers understand that weight is more important than volume when it comes to packaged popped corn, since kernels might disintegrate in the bag and thus pack more tightly, changing a serving size’s volume.

The court first rejected a preemption argument. Plaintiffs weren’t challenging a measurement technique or the nutrition facts as such, but arguing that the labeled approximation of cups included on the nutrition information was woefully inaccurate compared to the actual measure of cups contained in a bag of SkinnyPop. They alleged that their sampling of 11 bags of SkinnyPop showed “up to approximately 43% less than what is labeled and promised.” This theory didn’t seek to impose any requirement non-identical to federal law.

The court also rejected defendants’ argument that the use of “about” to qualify the serving size information precluded liability.  “SkinnyPop may not escape liability for providing far less product to consumers by using disclaimers such as ‘about’ or ‘approximate.’”

However, the remaining argument—that plaintiffs failed to allege whether the weight of the popcorn differed from what was claimed on the bag—succeeded. “[T]o accurately consider whether or not less product is indeed being delivered, weight is a relevant consideration given that the volume of popcorn is more likely to change based on the popcorn’s configuration when purchased.” The court relied on “the common understanding that popcorn’s configuration is highly mutable.”  In particular, “a reasonable consumer purchasing pre-popped popcorn would understand that while the volume may vary depending on whether the popcorn is in whole or broken pieces, the weight is likely to remain consistent.” Plaintiffs couldn’t state a claim by focusing solely on the highly variable volume, without addressing the actual weight. If a consumer noticed a volume discrepancy, but also found that the weight matched the representation on the bag, “a reasonable consumer, using common sense, would likely assume that any difference in volume was due to the popcorn being broken into smaller pieces during transit.”

Leave to amend was granted if the plaintiff could make weight-based allegations.