Santa Clara, CA: A consumer fraud class action lawsuit has been filed against Gourmet food gift maker Harry & David LLC alleging it underfills its popcorn tins, in violation of the Federal Food, Drug and Cosmetic Act.
According to the suit, filed in New York federal court, Moose Munch gourmet popcorn boxes contain excessive empty space, or “non-functional slack-fill,” that trick consumers into believing they are getting a full box of popcorn – for which they have paid.
Lead plaintiff Bria Brown alleged that she bought a 10-ounce package of Harry & David Moose Munch milk chocolate-flavored gourmet popcorn for $7.99 at a Macy’s retail store location in New York based on the reasonable assumption that the non-transparent cylindrical cardboard box was filled to functional capacity.
However, upon opening the package, Brown said she learned that Harry & David’s products are packaged in transparent plastic pouches inside a non-transparent, cylindrical cardboard box “so that plaintiff and class members cannot see the non-functional slack-fill in the container.”
According to Brown, when she opened the box she discovered it was more than half empty, thereby doing her injury by depriving her of the benefit of her purchase, according to the complaint.
“Plaintiff and class members viewed defendant’s misleading products packaging, and reasonably relied in substantial part on its implicit representations of quantity and volume when purchasing the products,” the suit states. “Plaintiff and class members were thereby deceived into deciding to purchase the products, whose packaging misrepresented the quantity of popcorn contained therein.”
“While some of defendant’s slack-fill may have functional justifications related to packaging requirements, defendant’s total slack-fill exceeds the amount necessary for this,” according to the complaint. “This is proven by the fact that the slack-fill in defendant’s products is significantly greater than the slack-fill in the packaging of comparable gourmet popcorn products.”
Brown is represented by C.K. Lee and Anne Seelig of Lee Litigation Group PLLC. The case is Bria Brown v. Harry & David LLC, case number 1:17-cv-00999, in the U.S. District Court for the Southern District of New York.
