When you buy a container of dessert labeled as being six ounces, shouldn’t those six ounces refer to the amount of the dessert it contains? The complaint for this class action claims that Luigi’s Real Italian Ice is sold in six-ounce cups that have an internal fill line that only allows 5.4 or 5.5 ounces of ice in each cup.
The class for this action is all persons in the US who bought, for personal use and not for resale, six fluid ounce cups of Luigi’s Real Italian Ice. New York and Massachusetts subclasses have also been proposed.
The products at issue in this class action are the varieties of Luigi’s Real Italian Ice, made by the J&J Snack Foods Corporation:
The complaint for this class action contends that the six-ounce cups of Luigi’s Real Italian Ice are under-filled and therefore deliver 8% to 9% less ice than consumers believe they are paying for.
The outer packaging for the ice cups claims that it contains “6 fl oz cups” and “net 36 fl oz” which most consumers would presume to refer to the food rather than the packaging. Each cup also states “net 6 fl oz” on the lid.
According to the complaint, testing has confirmed that each cup contains only 5.4 to 5.5 fluid ounces of product.
The complaint claims that the under-filling of the cups represents breaches of warranty, unjust enrichment, and fraud. It also cites violations of New York’s General Business Law (for deceptive acts or practices and false advertising) and Massachusetts General Law.
As to the Massachusetts violation, the complaint claims that a letter was sent to J&J Snack Foods pursuant to the law, specifying the company’s conduct and notifying it of the intention to bring a class action against it. As of the filing of this complaint, more than a month later, the company has not yet made what the complaint calls “a timely and adequate response” to the letter.