Starbucks Slack-Fill Class Action Holds No Water … or Milk Foam

Tall, Grande, and Venti are terms well-known to many American consumers looking for a latte or mocha at one of more than 13,000 Starbucks locations in the United States.  Most, if not all, of those consumers are aware that Starbucks baristas typically leave some room when filling 12 ounce (“Tall”), 16 ounce (“Grande”), and 20 ounce (“Venti”) hot beverage cups.  However, several disgruntled consumers who bought latte and mocha drinks at Starbucks locations in New York, Florida, and California filed a class action lawsuit in 2016 in the U.S. District Court of the Northern District of California, alleging that the ubiquitous coffee purveyor made false and misleading statements by under-filling its hot beverage cups.

The class action plaintiffs asserted three theories: (1) Starbucks’ coffee cups hold exactly 12, 16, and 20 ounces when filled to the brink; (2) the foam added to the top of a latte does not count towards the promised volume of the beverage; and (3) the “fill-to” lines used by Starbucks’ baristas on steaming pitchers are too low for the product delivered to consumers to contain the promised beverage amount. 

In an eminently rational opinion by a judge on the “Food Court,” the district court concluded that consumers were not misled and entered summary judgment in the Seattle-based company’s favor.

First, the District Court concluded that Starbucks’ cups, when filled, hold in excess of 14, 18, and 22 ounces – more than 2 fluid ounces greater than the menu boards in stores represent.  As a result, consumers at Starbucks receive at least (and likely more than) the promised beverage amount, and accordingly, are not misled by any failure to fill cups to the brink. 

Second, the judge rejected the plaintiffs’ claim that milk foam is not measured by volume because “no reasonable consumer would be deceived into believing that Lattes, which are made up of espresso, steamed milk and milk foam, contain the promised beverage amount excluding milk foam.” (emphasis in original).  Without question, consumers know that some portion of their latte will be milk foam.  Plus, they could always ask for light or no foam.

Finally, the plaintiffs’ claim that the sum of the ingredients used in Starbucks’ standard recipes to make lattes do not add up to the promised beverage amount fared no better.  Lattes (and other drinks) are measured by volume and the primary ingredient in a latte, milk, expands when heated and aerated, creating milk foam.  Shockingly, the plaintiffs’ expert witness failed to account for the expansion of milk and the resulting milk foam because she “did not even heat the milk.” 

Whether this is an outlier favorable decision among the current spate of slack-fill cases or the beginning of a foam-filled wave remains to be seen.  Less than two years ago, a different California federal district court cut short another  proposed class action against Starbucks, which alleged that it misled consumers who purchased cold drinks because the beverages contained ice to make the cups appear full.  In dismissing that case with prejudice, the California district court judge held that reasonable consumers are not deceived because they know “that a portion of the drink will consist of ice.”  Like a caffeine addict waiting for a cup of Joe on a cold winter’s morning, hope springs eternal … at least in the universe of slack-fill labeling litigation.

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