Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Mo.: Consumer suffered no ascertainable injury where packaging accurately represents product, (Sep 25, 2024)

By Patricia K. Ruiz, J.D.

The court found the manufacturer accurately listed the net weight of the product on the packaging and committed no unlawful act under the MMPA.

The federal district court in St. Louis, Missouri granted summary judgment in favor of the manufacturer of vanilla yogurt raisins in a lawsuit alleging violations of the Missouri Merchandising Practices Act (MMPA). Mariani Packing Co. Inc.’s vanilla yogurt raisins are packaged a box 19.5 centimeters high, and filled to about 8 centimeters with vanilla yogurt raisins. The consumer argued that the slack fill was deceptive. The court determined, and the consumer admitted, that the consumer received exactly what she bargained for—seven ounces of yogurt-covered raisins (Diesel v. Mariani Packing Co. Inc., No. 4:22-cv-01368-AGF (E.D. Mo. Sept. 23, 2024)).

A consumer purchased a seven-ounce bag of vanilla yogurt raisins in a grocery store in St. Louis, Missouri, after having previously purchased the product on two or three other occasions. The product is produced by Mariani Packing Company, Inc. The consumer noticed that, despite the product packaging being 19.5 centimeters high, the bag was only filled to about 8 centimeters with vanilla yogurt raisins. In her deposition, the consumer acknowledged the product accurately listed the net weight of the product but stated she assumed the product was full because she could see yogurt covered raisins filled up to the height of a window on the front of the packaging. She admitted she never read the information printed on the product’s packaging other than the name of the product, nor did she feel the contents of the packaging, despite acknowledging feeling other products. The consumer stated that her basis for believing the packaging should contain more raisins was her own personal opinion of the appearance of the package but confirmed that, had the packaging contained a “fill line” indicating the height of the raisins in the bag, she would have still purchased the product.

The consumer filed a class action lawsuit claiming that the product misled reasonable consumers and bringing numerous claims. Ultimately, the consumer withdrew all of her claims except the MMPA claim, for which the court granted class certification. Mariani moved for summary judgment for failure to establish a viable claim under the MMPA, arguing that: (1) the consumer has not established an ascertainable loss of money or property; (2) the consumer has not established that Mariani acted unlawfully under the MMPA; (3) the consumer failed to show she acted reasonably or that Mariani’s practices would cause a reasonable person to enter into the transaction that resulted in damages; (4) the consumer failed to establish individual damages with sufficiently definitive and objective evidence to allow the loss to be calculated with a reasonable degree of certainty; and (5) the consumer failed to offer any evidence that the product is not entitled to one of the safe harbor provisions of 21 C.F.R. §100.100.

Benefit of the bargain rule. Missouri courts apply the “benefit of the bargain” rule when determining whether a plaintiff has suffered an ascertainable loss under the MMPA. The rule awards a prevailing party the difference between the actual value of the property at the time of the sale and what its value would have been if the representation had been true. To demonstrate ascertainable loss, the plaintiff must show that the defendant represented the product in a way that made it appear to have more value than it actually did. Thus, the plaintiff must show some discrepancy between the defendant’s representation and the actual product.

While the consumer alleged an economic injury based on an objective characteristic—the difference in the value of the product as represented and the product as received—she produced no evidence to support a claim of economic injury. Further, under the benefit-of-the-bargain rule, courts compare the actual product with the product as represented, not the product as conjured or hoped for by the consumer. The court found the consumer cannot establish a difference in value under the benefit-of-the-bargain rule because all of the representations as to the quantity on the bag of raisins were correct, and there was no discrepancy between the representation and the product actually received. Thus, she received what she bargained for and cannot demonstrate an ascertainable loss.

Unlawful act. Because Mariani’s packaging prominently disclosed the net weight of the product on the front label, the consumer cannot demonstrate Mariani committed an unlawful act, such as deception, fraud, or misrepresentation. The consumer admitted that none of the words on the packaging were misleading, and the court found the packaging at issue was a flexible bag and that she could have readily felt the contents of the package to determine how full the product was. The court further found that the consumer presented no convincing precedent to support her argument that Mariani used the transparent window on the packaging in a misleading way.

Mariani established by affidavit that any slack-fill in the product’s packaging served functional purposes expressly permitted by exemptions under 21 C.F.R. §100.100(a), and the consumer made no effort to refute these arguments, instead responding with a conclusory assertion that the exemptions are irrelevant because the packaging was otherwise deceptive. The court granted summary judgment in favor of Mariani as to the safe harbor provisions.

The Case is No. 4:22-cv-01368-AGF.

Judge: Fleissig, A.

Attorneys: Daniel F. Harvath (Harvath Law Group LLC) for Kimberly Diesel. James C. Morris (Gordon Rees LLP) for Mariani Packing Co., Inc.

Companies: Mariani Packing Co., Inc.

Cases: Advertising MissouriNews StateUnfairTradePractices