False advertising class action against protein powder company lives on

(CN) — A federal judge in California on Tuesday advanced a class action against a protein powder manufacturer claiming that the company deliberately misleads consumers about the amount of product in their containers.

According to a suit first filed in August 2022, Reliance Vitamin, producer of the PlantFusion brand of vegan protein supplements, unlawfully relies on the marketing practice of “slack-fill” to trick customers into purchasing their jars of supplements. The plaintiffs say that upon opening, the opaque PlantFusion jars are filled only halfway, with a deceptive and unnecessarily large empty slack-fill space.

After initially dismissing the case this year, U.S. District Judge William H. Orrick III found the first amended complaint sufficiently showed that the vitamin company may have violated reasonable consumer standards and misrepresented their product to consumers.

The claims, brought by California resident Taylor Costa on behalf of herself and others, include violations of unfair competition, false advertising and warranty laws, as well as fraudulent misrepresentations. Reliance Vitamin motioned to dismiss the claims, saying that the slack-fill in their containers were functional as part of manufacturing and logistical conditions.

Although Reliance, represented by Steptoe & Johnson, also claimed that the PlantFusion containers provide information on its labeling to make clear how many servings were in the jars, Orrick decided that the size of the containers and the use of slack-fill may be intentionally deceptive.

“Combined with her allegations that the labels on the Reliance containers were not sufficient to dispel the deception, given they do not provide a clear statement of yield that a reasonable consumer would understand, Costa shows reasonable consumers are likely to be misled by Reliance’s container size and use of slack fill,” he wrote.

Costa, reresented by attorney Zachary Chrzan, claims it is impossible for PlantFusion consumers to truly quantify the amount of protein powder they will be receiving in the jar, given the nebulous concept of what constitutes a serving size of protein powder.

Although the jars are labeled with a panel indicating how many grams are in a serving size scoop and the amount of scoops per container, Costa contends that all the information is given separately and in fine print, requiring consumers to carefully inspect the container and manually calculate how many drinks the jar could produce. Even if Reliance provides an approximation of how many servings can be made, Costa says, may not necessarily adhere to the recommended serving size given their individual needs, so the size of the container becomes the primary method of determining the amount of product.

Orrick agreed it's unreasonable to expect consumers to do all this at purchase time and that it is more likely that consumers would use the size of the jar to approximate how much protein power was being purchased.

The judge also ruled that the size of the containers may lead to unfair competition with other protein powders that used clear containers or otherwise visually indicated how much powder is in the jars.

“Reliance’s use of slack-fill was intentional and intended to 'harm' — that is, to cause consumers to buy the product or spend more than they otherwise would have on the product — because it shows that there were viable, non-misleading alternatives that Reliance could have used; that Reliance knew of the viable, non-misleading alternatives; and that Reliance chose a container with more slack fill knowing its competitors had less slack fill and so knowing it would have a competitive advantage,” Orrick wrote.

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