Starbucks Bottled Drinks May Lack Coffee, But Lawsuit May Lack Grounds

There are many big questions in life. Are we alone in the universe? Do we have a purpose? Will there ever be an end to war? What’s up with the neck of your bottled iced coffee? That last question, in particular, can be a real puzzler – and, in fact, is at the heart of a recently filed lawsuit. The suit, a consumer protection action filed by plaintiffs in Illinois, Michigan and New Jersey, concerns bottled Starbucks Frappuccino and Iced Coffee drinks sold at pharmacies, convenience stores, grocery stores and other stores throughout the United States. These drinks, it seems, are sold with packaging wrapped around the bottles – packaging that covers the neck of the bottle, making it impossible to tell if the space (the “slack-fill”, apparently) is filled with delicious, expensive coffee, or just regular, expensive air. Not knowing whether you’re buying air or coffee can be a problem even for Starbucks lovers – hence the lawsuit, which claims the company is violating the Federal Food Drug and Cosmetic Act (along with more than fifty different state laws) by selling misbranded – and therefore misleading – food.

A load of hot (or cold) air? Let’s have a look.

The complaint’s argument is based on the federal law which states a food shall be deemed “misbranded” if:

“[I]ts container is so made, formed, or filled as to be misleading."

This is backed up by further legislation (FDCA 21C.F.R.§100.100, for those who care) which goes on to explain that:

“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. Slack-fill is the difference between the actual capacity of a container and the volume of product contained therein. Nonfunctional slack-fill is the empty space in a package that is filled to less than its capacity[…]”

While it’s tempting to question why a law exists covering “slack-fill,” the principle does make sense. Packaging is regulated to ensure consumers have a reasonable expectation that what they see is what they get. It’s the same idea behind advertising regulations: companies can’t make false claims or boasts about their products, and so they can’t package their products to look bigger than they are (though no one, apparently, has told Lay’s). In the case of Starbucks bottled coffee, plaintiffs claim that the company intentionally designed its bottles to hide the fact the neck was empty, giving the impression people were getting more than they actually were. In the list of humanity’s crimes, it’s somewhere between a company lying about what’s in its food, and the fact Starbucks will charge you $4.25 for a Mocha Frap, but still, it does seem like you should be able to tell how much coffee you’re buying. Even though bottled Starbucks drinks contain information on their labels, plaintiffs in the lawsuit seem to think Starbucks is taking advantage of consumers, “employ[ing] slack-filled packaging containing non-functional slack-fill to mislead customers into believing that they were receiving more Products than they actually were.”

In a totally-not-insane addition to the complaint, attorneys have even done the math (the math, I say) on how much empty slack-fill there is in a 370 ml glass bottle. Want to know? Of course you do. It’s 12.2% (assuming the bottle contains “merely” (merely!) 325ml of coffee). That’s just for the Iced Coffees, mind you. For Frappuccino drinks, glass bottles contain 281ml of coffee in a 320ml bottle, meaning the coffee takes up only 87.5% of the bottle’s actual space – meaning 12.5% of outrageously empty slack fill.

If you’re not incensed enough already, the suit submits EXHIBIT B – a Herbert’s Lemonade Strawberry Lemonade drink, which has an entirely reasonable and proper slack fill of 3.9%. EXHIBIT B is good, and consumers should be happy. EXHIBIT A – the Starbucks bottled drinks – is, the suit says, bad, and something must be done.

In the end, although it’s tempting to dismiss suits like this, they do serve a purpose. Transparency is, at times, literally important, and being able to see into the bottles you’re buying could have an impact on your choice to purchase them or not. It will be interesting to see if lawyers can prove that Starbucks acted deliberately to hide the empty space in the bottle necks.

The suit is seeking compensation for a nationwide class of consumers who bought bottled Starbucks drinks, as well as a court order forcing Starbucks to repackage its products to remove the non-functional slack-fill. It was filed in the United States District Court, Eastern District of New York. You can read the complaint, along with all its fun, slack-filled math, here.