Annie’s Hops Away from Proposed Slack-Fill Class Action

By: Ashley Song

Summary: Annie’s, Inc. recently defeated a proposed class action that alleged its tropical-flavored bunny-shaped fruit snacks contained non-functional slack-fill and therefore misled consumers as to the amount of product contained therein.

Key Takeaways: Annie’s, Inc. defeated a proposed class action in the Southern District of New York that alleged that its tropical-flavored bunny-shaped fruit snacks (“Fruit Snacks”) deceived consumers by containing “non-functional slack-fill” (i.e., unnecessary empty space) and misled consumers as to the amounts of snacks contained in each package.

In Klausner v. Annie’s, Inc., 2022 WL 204356 (S.D.N.Y., Jan. 24, 2022, No. 20-CV-08467 (PMH)), Jessica Klausner brought two New York state consumer protection law claims, as well as claims for negligent misrepresentation, breach of warranty, violations of the federal Magnuson-Moss Warranty Act, fraud, and unjust enrichment.

In granting Annie’s motion to dismiss, the court pointed out the information clearly disclosed on the packaging in “large, color-differentiated font,” including the number of pouches and the amount of fruit snacks, and ruled as a matter of law that a reasonable consumer would not be misled by the size of the box and its empty space. The court also brought attention to how Klausner failed to refute the accuracy of the boxes’ information; in other words, Klausner never alleged that any of the boxes of Fruit Snacks she purchased contained less than what was indicated on the packaging.

The court also found that Klausner did not actually suffer any harm as she purchased the Fruit Snacks “multiple times a year for the past three years” from several stores. The court made reference to this fact, stating that after three years, Klausner must be aware of the amount of empty space in the boxes and therefore cannot be misled.

Furthermore, the judge dismissed the various warranty claims for lack of privity, as Klausner never alleged that she purchased the Fruit Snacks from Annie’s, but rather through ShopRite and other stores. Moreover, Klausner never alleged personal injury, only economic injury.

The court declined to allow Klausner to amend and reassert her claims, noting that she already had an opportunity to amend and also failed to attach a proposed amended pleading or otherwise advise in her briefing how the defects could be cured by amendment.

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