A Nielsen study shows that the average consumer spends only thirteen seconds making a purchasing decision in a store, and generally doesn’t even read label information such as net weight. Still, when plaintiff Michael Gonzales brought home Fusion’s Clean scent, the complaint for this class action says, he was disappointed to find great deal of difference between the outer size of the box and the size of the actual product.
The class for this action is all California residents who made retail buys of Fusion Brands Clean products that were packaged in containers with a false bottom, false sidewalls, and a false lid or covering, as defined by the California Business & Professions Code § 12606, during the applicable statute of limitations period, up to the final judgment of this action.
According to the complaint, the box for the product was opaque, so that consumers could not see the volume of the product before buying it. The pictures in the complaint are most interesting if you look not only at the box but also at the thick-bottomed glass bottle containing the scent. The complaint alleges that the product occupied only a fraction of the space in the box, and this certain seems to be true.
Both state and federal laws forbid deceptive packing. California’s Fair Packaging and Labeling Act (CFPLA) states, “Packages and their labels should enable consumers to obtain accurate information as to the quantity of the contents and should facilitate value comparisons.”
More specifically, CFPLA says, “No container … shall have a false bottom, false sidewalls, false lid or covering, or be otherwise so constructed of filled … as to facilitate the perpetration of deception or fraud.” It goes on to say, “No container shall be made formed, or filled as to be misleading. 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 empty space inside a container, and sometimes it is needed. CFPLA names fifteen instances in which slack fill is functional and permissible, such as the folloing:
However, none of the fifteen instances apply to the Clean scent product, according to the complaint, which finds no good reasons for the false bottom, sidewalls, and top. The empty space is deceptive, it alleges, making consumers think the box contains more of the product than it does.
The complaint therefore claims that the product violates the CFPLA, California’s Consumer Legal Remedies Act, its Unfair Competition Law, and its False Advertising Law.