Co-authored by Jonathan Rotenberg

The U.S. District Court for the Eastern District of New York allowed plaintiff’s deceptive business practice, false advertising and unjust enrichment claims based on the misleading packaging of a food product to proceed.

Plaintiff’s claims stemmed from plaintiff’s purchase of a box of a food product, Berry Green. Plaintiff alleged that Berry Green lists only its metric weight, and not its weight according to the U.S. Customary or “imperial unit” system. Plaintiff further alleged that Berry Green comes in a non-transparent box that is 6 5/8 inches tall, and that, inside the box, there is a 5 5/8 inches tall jar that is only half-full with the product.

In finding that plaintiff could pursue her deceptive business practices claim, the court concluded that the allegations in the complaint that the Berry Green packaging gives the false impression that consumers bought more than they actually received was sufficient to plead the “materially misleading” element of a deceptive business practices claim. The court found that plaintiff’s allegation that had she understood the true amount of the product she would not have purchased it sufficiently pled that plaintiff was injured as a result of the materially misleading packaging. The district court also denied defendant’s motion to dismiss plaintiff’s false advertising claim, because allegations of excessive slack-fill in packaging stated a claim for false advertising. (Waldman v. New Chapter, Inc., No. 09-CV-3514, 2010 WL 2076024 (E.D.N.Y. May 19, 2010))