Putative class members sued Unilever in connection with antiperspirant and deodorant products they purchased at a number of retail stores in California.  They alleged that, because of the size of the packaging, plaintiffs believed they were “getting more product for a similar price as compared to other brands of stick deodorant which were in smaller packages.”  They believed this because, when they got the products home, they discovered “a significant amount of empty space on both the top and bottom of the products, i.e., “nonfunctional slack fill.”  According to the plaintiffs, this “slack fill” was not apparent when they examined the products prior to purchase because the packaging was opaque.  

And, worse, they allege, before making their purchases, they examined other similar products with non-opaque packaging and were able to see that the packages were completely full. Therefore, they believed the Unilever products were similarly full, and because the Unilever product packaging was larger than the competitors’ packaging, they thought that they were getting more product for a similar price.  Their complaint asserts claims under the California’s Consumers Legal Remedies Act (“CLRA”), California’s False Advertising Law (“FAL”), and California’s Unfair Competition Law (“UCL”), as well as claims for unjust enrichment, breach of implied warranty of merchantability, negligent misrepresentation, and fraud.   Defendant moved to dismiss.

Most interesting to me in the court’s decision is its reasoning as to its refusal to grant defendant’s motion to dismiss the CLRA, FAL and UCL claims.  The defendant had argued that the plaintiffs’ claims should be dismissed because the products’ packaging and labels accurately disclosed the net weight of the products. Plaintiffs argued that the disclosure of net weight, by itself, was insufficient to warrant dismissal of these claims. 

The Court agreed, based on the following:

• All the packaging for the products at issue is opaque, meaning that buyers can’t judge for themselves how much is inside and whether there’s unused empty space.
• The net weight listing is, for products like these, of limited value: consumers can’t really evaluate how much deodorant is in a package based on weight because they don’t really know what deodorant weighs.  As the Court noted, unlike some of the cases cited by the defendant, in which the products included additional measurements such as the number of cookies or the amount of cake or bread that could be made with the product, here, “the net weight alone provides little, if any meaningful information to the consumer about the actual size or amount of deodorant inside the container. Also, unlike with a container of cookies or cake mix, which makes some noise upon handling, the consumer is unlikely to obtain any useful information about the amount of deodorant inside the container from manually handling or shaking the product.”
• Consumers’ expectations may have been affected by the size of the container: while a purchaser of a high-end cosmetic product may not expect a package to be full, the “reasonable consumer of everyday deodorant products is more likely to expect that the deodorant inside the container will correlate with the space between the plunger on the bottom of the container and the opening on the top, and that the plunger will be as near to the bottom as possible, not an inch above.”

Accordingly, the Court declined to grant defendant’s motion to dismiss these claims, or even plaintiffs’ request for equitable relief on these claims.  (The Court did, however, grant defendant’s motion to dismiss other – though not all -- of plaintiffs’ claims.)

What are the implications of a ruling like this?  It means that consumer product companies may have to consider what claims are potentially conveyed by package size, or other visual elements, particularly in comparison to competitive products.  Including a truthful net weight disclosure may not be sufficient when facing allegations that a product’s packaging is “misleading” about the volume of its contents.

Nicole Krause-Pettai, Scott Grimm, Steve Tabu Lanier, Christy Stevens, individually and on behalf of all others similarly situated, v. Unilever United States, Inc.,  Case No.: 20cv1672 DMS (BLM), 2021 WL 1597931, United States District Court, S.D. California (04/23/2021)

(Description of graphic for visually-impaired readers: drawing of four personal care products.)