Complaint Excerpts:

• • “Every bag checked of the Original flavor 4.4 oz bags contained not the 16.5 cups promised but only approximately 9.5 to 11.5 cups of popcorn.”
  • “The 5.3 oz Kettle Corn bags claim to contain 5 servings of 2.5 cups, for a total of 12.5 cups of popcorn…[but] contain only approximately 9.5 cups of popcorn.”
  • “The 6.7 oz bags of SkinnyPop Original Popcorn claim to contain…a total of 24.38 cups of popcorn…[but] contain only approximately 17.5 cups of popcorn.”
  • “[If] the total calorie count represented on SkinnyPop Popcorn bags is correct…there are significantly more calories per serving of SkinnyPop popcorn than advertised.”
  • “Defendants have knowingly deprived, and continue to deprive, consumers out of popcorn.”

Important Takeaways:

• • The lawsuit covers various SkinnyPop flavors and bag sizes, alleging consistent underfilling of 15-43% across products tested.
  • Plaintiffs argue the slack fill misleads reasonable consumers, who cannot see the actual quantity due to the opaque packaging.
  • In addition to underfilling claims, the case alleges the misstated quantity means actual calorie counts per serving are higher than labeled.
  • The named plaintiffs detail their own purchases and experiences to represent a broader class of similarly-situated California consumers.
  • By filing in federal court, the case can efficiently resolve the claims under California law for all class members across the state.

Perspective:

• • Consumer View: I feel misled by SkinnyPop’s deceptive packaging and labeling. I expected the bags to be filled as advertised and now worry I’ve been eating more calories than I bargained for in this seemingly “healthy” snack. The company should be held accountable.
  • Defense View: Some variation in product quantity is normal and allowed under the law. No reasonable consumer would expect exactly to-the-kernel precision in popcorn fill. The plaintiffs are just trying to extract a settlement for minor issues that didn’t actually deceive or harm them.
  • Impartial View: The case raises valid questions about how much slack fill is acceptable for popcorn and snack products. More data is needed on the extent and consistency of underfilling and if it crosses the line past reasonable packaging variations. The calorie misrepresentation claims are concerning if validated. Consumers deserve transparency to make informed choices.

Key Statutes & Caselaw:

• • FDCA 21 U.S.C. § 343(d): “A food shall be deemed to be misbranded…if its container is so made, formed, or filled as to be misleading.”
  • 21 C.F.R. § 100.100: “A container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill.”
  • Cal. Bus. & Prof. Code § 17200: Prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising…”
  • Cal. Bus. & Prof. Code § 17500: Makes it unlawful to disseminate false or misleading statements in advertising.
  • Cal. Civ. Code § 1770(a): Bans various misrepresentations about the characteristics, ingredients, uses, benefits or quantities of goods.

How Laws Apply:

• • False Advertising: The plaintiffs allege SkinnyPop’s underfilled bags and inaccurate calorie labels violate federal and state prohibitions on false and misleading advertising.
  • Misbranded Food: The complaint claims the underfilling and slack fill make SkinnyPop bags misbranded under the FDCA, an unlawful practice under the UCL.
  • Unfair/Fraudulent Conduct: The allegedly deceptive packaging is attacked as unfair and fraudulent under the UCL as likely to deceive reasonable consumers.
  • CLRA Violations: Specific misrepresentations about the characteristics, ingredients, and quantities of SkinnyPop products implicate the CLRA’s protections.
  • Similar Cases: Courts have certified slack fill class actions under these laws for Tootsie Rolls (Benson v. Tootsie Roll), Sour Patch Kids (Izquierdo v. Mondelez), and more.

Perspective:

• • Consumer View: As a consumer, I rely on product labels to honestly disclose quantity and nutrition facts. If the lawsuit’s allegations are true, SkinnyPop’s conduct is the type of deceptive practice these consumer protection laws are designed to prevent and remedy.
  • Defense View: These laws don’t require rigid mathematical precision in product fill or calorie counts. They allow for reasonable variations. The plaintiffs are trying to stretch the statutes beyond their intended scope to cover normal, non-deceptive practices.
  • Impartial View: Determining if SkinnyPop’s fill levels and labeling violate these laws will require a close analysis of the specific statutory language, agency regulations, and caselaw. Expert evidence on standard industry practices for slack fill and quality control will also inform if the products are actually misleading to reasonable consumers.

Potential Proof:

• • Testing Data: According to the complaint, sample bag testing across flavors and sizes consistently shows 15-43% less popcorn than advertised on the labels. If this testing methodology is sound and results are consistent, it could strongly support the underfilling claims.
  • Expert Witnesses: Food packaging, labeling, and regulatory compliance experts can opine on whether SkinnyPop’s slack fill has any functional purpose or is non-functional and misleading. Statistical experts can extrapolate the test results to demonstrate class-wide underfilling.
  • Consumer Surveys: Surveys of California consumers can gauge whether the SkinnyPop packaging and labels would deceive or mislead a significant portion of reasonable buyers. They could also support materiality by showing consumers rely on and value accurate filling and calorie information.
  • Economic Analysis: Using SkinnyPop’s wholesale and retail pricing and sales data, economic experts can calculate the amount of popcorn Californians were shorted compared to what they paid for and establish classwide damages from the underfilling.
  • Internal Documents: Company emails, quality control records, and other documents may contain incriminating evidence that SkinnyPop knew about the slack fill issues or intentionally underfilled bags and misstated calorie counts.

Proof Hurdles:

• • Disproving Functional Slack Fill: The defendant may argue any extra air in the bags protects or is otherwise necessary for the popcorn. Plaintiffs will need to refute any legitimate reasons for the slack fill.
  • “Puffery” Defense: SkinnyPop may claim any inaccuracies in its filling or calorie numbers are just normal puffery allowed in ads, not actionable misrepresentations. Plaintiffs must show these overstatements are factually false and cross the line.
  • Lack of Actual Deception/Reliance: The defendant may argue consumers don’t actually rely on or get deceived by popcorn bag fill levels in their buying choices, making the alleged mislabeling immaterial. Consumer behavior evidence will be key.
  • Conflicting Economic Harm Models: Experts often hotly debate the proper way to calculate consumer overpayment and economic losses in product labeling cases. Plaintiffs must present a sound damages model while poking holes in any defense alternatives.
  • Sampling Challenges: SkinnyPop may dispute that the plaintiffs’ sample bag testing is representative of all bags sold or shows systematic underfilling. Testing larger samples and bags produced at different times and facilities can bolster the plaintiffs’ case.

Perspective:

• • Consumer View: The evidence seems to support SkinnyPop has been regularly shorting customers on popcorn. No one expects some kernels to always get stuck in the bottom, but consistent 15-40% underfilling across products is unacceptable. Those amounts really add up over time for regular buyers.
  • Defense View: Variations in filling between bags is unavoidable in the popcorn manufacturing process. The plaintiffs are cherry-picking outlier “underfilled” bags while ignoring plenty of bags that likely have bonus extra popcorn in them too. Consumers understand some variability is normal.
  • Impartial View: The plaintiff’s theory appears factually and legally sound if they can back it up as alleged. It will come down to a battle of the experts on key issues like the propriety of the fill testing, the functional slack fill analysis, and the behavioral and economic evidence of consumer deception and loss. The court will need to sift through the competing evidence to rule on class certification and summary judgment.

Potential Resolutions:

• • Class Settlement: Many false advertising class actions settle before trial, with the defendant agreeing to provide refunds, coupons, or other compensation to class members and correct labeling going forward. A settlement here could put millions back in consumers’ pockets.
  • Classwide Trial Verdict: If certified as a class action and not settled, a jury could return a verdict for the consumer class after weighing all the evidence. A plaintiffs’ win would vindicate consumer rights and likely be a larger recovery than settlement.
  • Individual Settlements/Trials: If not certified for class treatment, the named plaintiffs could still pursue individual settlements or trials on their own claims. But this would be less efficient and impactful than a classwide resolution.
  • Dismissal/Defense Wins: The court could find the plaintiffs lack sufficient proof and dismiss the case before trial or a jury could render a defense verdict. This would leave the status quo intact and curtail similar lawsuits.
  • Injunctive Relief Only: Even without a damages award, the court has the power to order SkinnyPop to change its products and packaging to comply with the law. This could provide meaningful relief for consumers.

Case Challenges:

• • Class Certification Denial: The court could find individual consumer issues predominate over common questions and deny certification. This would prevent the case from efficiently proceeding as a class action.
  • Expensive, Lengthy Litigation: Class actions are notoriously costly and time-consuming. Both sides will likely have to invest significant resources in electronic discovery, depositions, expert witnesses, and pretrial motion practice that could drag on for years before any resolution.
  • Liability and Damages Defenses: SkinnyPop will vigorously contest liability, arguing its practices are lawful, not deceptive, and fully vetted by regulators. It may also dispute the propriety and amount of any monetary recovery for consumers.
  • Potential Delays and Appeals: With the high stakes involved, any class certification or dispositive court ruling would likely be appealed. This could significantly delay a final resolution and jeopardize the plaintiffs’ ability to maintain a certified class.
  • Public Relations Battles: Alongside the courtroom fight, SkinnyPop and the plaintiffs will wage a public relations war in the media to sway public opinion. The plaintiffs must maintain the moral high ground while SkinnyPop paints them as greedy and opportunistic.

Perspective:

• • Consumer View: I hope this case succeeds in holding SkinnyPop accountable and recovering refunds for misled buyers like me. But more importantly, an injunction forcing the company to stop shortchanging customers and put more popcorn in the bag would be a big win.
  • Defense View: This is an opportunistic strike suit looking for an undeserved windfall. Granting class certification or a plaintiffs’ judgment would open the floodgates to frivolous litigation over all sorts of standard packaging practices. The court should reject this overreach.
  • Impartial View: The case raises valid questions about what level of slack fill is permissible for different food products and how much inaccuracy in labeling is legal. Assuming the allegations are provable, a settlement or verdict reforming SkinnyPop’s practices could serve the public interest. But the plaintiffs have significant hurdles to clear before then.

Examples:

• • The complaint cites sample fill testing on certain SkinnyPop products. But these test results will need to be validated and replicated on larger samples during discovery to withstand evidence challenges.
  • Before the plaintiffs can move for class certification, SkinnyPop will likely move to dismiss, arguing the complaint’s allegations are insufficient. The court’s ruling on this motion will shape the trajectory of the litigation.
  • While the plaintiffs seek to represent a California class, the court may later find a narrower class period or subclasses are appropriate if differences emerge among consumers.
  • SkinnyPop will assuredly dispute the plaintiffs’ allegations that it knowingly sold underfilled products with misstated nutritional info. The truth likely lies somewhere in the middle of the competing narratives.
  • The legal standards for liability and class certification, and even the permissibility of consumer class actions at all, may evolve with new caselaw during the long life of this complex litigation.

Other Limitations:

• • Scope of False Advertising: Even if successful, the case would only address the specific SkinnyPop flavors and sizes discussed. Deceptive practices involving other products would require additional litigation.
  • Jurisdictional Constraints: As filed, the class action would only cover California consumers under California law. Obtaining relief for consumers in other states where SkinnyPop is sold would require separate suits.
  • Settlement Likelihood: Given the costs and risks of protracted litigation, there is a strong chance the case settles before trial. Settlements have benefits but may provide less complete relief than a successful trial verdict.
  • Enforcement Challenges: Even if far-reaching injunctive relief is ordered, the plaintiffs will have to remain vigilant to ensure SkinnyPop actually implements the required changes and doesn’t revert to deceptive practices over time.
  • Societal Impact: While a win could discourage some false advertising, it’s unlikely to put an end to it across the snack industry. Policymakers and regulators may need to step up enforcement to achieve broader reforms.

Perspective:

• • Consumer View: Even with its limitations, this case is an important step to show food companies they can’t get away with shortchanging and deceiving trusting customers. I hope it yields real changes in SkinnyPop’s practices and sends a message to the whole industry.
  • Defense View: The complaint’s broad allegations disguise the weakness of its actual proof so far. SkinnyPop looks forward to debunking these overblown claims as the factual record develops and defeating any attempt to certify an overbroad class.
  • Impartial View: This case is still in its infancy with a long road ahead. While the theories are sound, it remains to be seen if the plaintiffs can marshal enough evidence to meet their burden of proof on such sweeping claims. The scope of any class and relief will likely narrow as the litigation proceeds.

Questions: Claims & Allegations

• • 1. What is the key factual allegation about SkinnyPop’s products?
    • A) The popcorn is stale and moldy
    • B) The popcorn bags are significantly underfilled
    • C) The popcorn contains undisclosed allergens
    • D) The popcorn has dangerous foreign objects in it
  • 2. By how much does the complaint allege certain SkinnyPop bags are underfilled?
    • A) Up to 10%
    • B) Up to 25%
    • C) Up to 43%
    • D) Up to 80%
  • 3. What is the primary California consumer protection law at issue?
    • A) Unfair Competition Law (UCL)
    • B) California Organic Products Act
    • C) California Popcorn Labeling Act
    • D) Healthy Food Packaging Ordinance
  • 4. What does the complaint allege about the calorie counts on SkinnyPop labels?
    • A) They fail to disclose calories from added sugars
    • B) They artificially inflate the calories to deter dieters
    • C) They are accurate for the labeled serving size but not the actual contents
    • D) They omit the calories contributed by the oil used
  • 5. Under the UCL, which of the following is NOT one of the three main prongs the plaintiffs can allege?
    • A) Unlawful conduct
    • B) Unethical conduct
    • C) Unfair conduct
    • D) Fraudulent conduct

Answers: Claims & Allegations

• • 1. B) The plaintiffs primarily allege that SkinnyPop substantially underfills its popcorn bags compared to the stated fill level on the labels.
  • 2. C) Based on sample testing, the complaint claims that certain SkinnyPop products contain as much as 43% less popcorn than promised.
  • 3. A) The California Unfair Competition Law (UCL) is the main state consumer protection statute invoked in the class action.
  • 4. C) The plaintiffs argue that if the total calories per bag are correct, the underfilling means more calories per serving than listed.
  • 5. B) The UCL prohibits unlawful, unfair, or fraudulent business acts – unethical conduct is not one of the law’s three prongs.

Questions: Procedural Details & Legal Issues

• • 1. In which federal court did the plaintiffs file their class action complaint?
    • A) Northern District of California
    • B) Central District of California
    • C) Southern District of California
    • D) Eastern District of California
  • 2. What is the key procedural hurdle the plaintiffs must clear to proceed as a class action?
    • A) Surviving a motion to dismiss
    • B) Obtaining class certification
    • C) Winning at the summary judgment stage
    • D) Getting a unanimous jury verdict
  • 3. What does the complaint seek on behalf of California SkinnyPop consumers?
    • A) Damages, restitution, and injunctive relief
    • B) Rescission of their SkinnyPop purchases
    • C) A nationwide SkinnyPop recall
    • D) Criminal penalties against SkinnyPop executives
  • 4. Under the UCL, which of the following is required to obtain restitution?
    • A) A showing of the defendant’s intent to deceive
    • B) Proof that class members actually relied on the misrepresentations
    • C) Evidence that the defendant’s conduct was likely to deceive
    • D) Establishing that the misrepresentations were malicious
  • 5. If the case settles, which of the following is NOT a likely term of the settlement?
    • A) A cash fund to compensate class members
    • B) Labeling and packaging changes
    • C) A court finding that SkinnyPop violated the law
    • D) An award of attorneys’ fees to class counsel

Answers: Procedural Details & Legal Issues

• • 1. C) The class action complaint was filed in the U.S. District Court for the Southern District of California, a federal court.
  • 2. B) The plaintiffs must move for and obtain class certification for the case to proceed on a classwide basis, which defendants often oppose.
  • 3. A) The complaint’s prayer for relief seeks damages