Cody v. Gainful Health Inc., 2026 WL 1428888, No. EDCV
25-01373-KK-SPx (C.D. Cal. May 19, 2026)

Gainful sells protein powder nutritional supplement products;
plaintiff alleged unlawful slack fill. Cody bought a “28 Servings” package that
“included two pouches or bags,” each weighing 14.8 ounces and “contain[ing] 14
servings per container,” and 28 “Flavor Boost” packets. Each pouch was “opaque”
and did “not allow the customer to fully view its contents.” The nutrition
label on the back of each pouch indicated a serving size of “1 scoop (30 g).” She
saw the image online, which “depicted a totally opaque Product container that
did not allow Plaintiff … to see the fill level within such container.” The
image also showed the “Flavor Boost” packets, “which indicated the far greater
size of the Product’s container by comparison.” The Amazon product listing
disclosed 28 servings, weight of 30 ounces, and package dimensions of 10.47 by
9.92 by 4.76 inches. But it did “not disclose any … disclaimer such as a
reference to a fill line or other caveat disclosing that the Product’s
container was not packaged to be substantially full of protein powder.”

The court found the claims sufficiently pled under the relevant
California statutes and common-law fraud. Cody sufficiently alleged an
affirmative misrepresentation by using an opaque and “oversized” container,
“which implied … that the container had more protein powder than it actually
contained,” and failure to disclose the non-functional slack fill in violation
of California law.

“Because a consumer viewing the Product listing on
Defendant’s online storefront has no ‘reasonable opportunity prior to purchase
to shake or otherwise manipulate’ the Product to determine whether the
Product’s packaging ‘is filled to the brim,’ they “may reasonably rely on the
size of the packaging and believe that it accurately reflects the amount [they
are] purchasing.’” Here, the packaging as depicted on the online storefront
conceals that the “actual product only occupies approximately 60 [percent] of
the exterior space represented by the Product’s packaging container.”

What about the quantity disclosures that did exist? First,
it was unclear whether the listing included the back label, making any
information on that label “irrelevant to determining whether a reasonable
consumer is likely to be deceived.” Listing dimensions, weight, and number of
servings “do[ ] not necessarily provide the reasonable consumer a meaningful
metric for how much powder is in the container,” as a reasonable consumer is
“not necessarily aware” of how a product’s weight and number of servings
“correlate[ ] to the product’s size.”

Even if Cody saw the back label, deception was still plausible.
Gainful cited several cases finding “no reasonable consumer would be plausibly
deceived” where a package “provide[s] a consumer with a ‘rough estimate’ of the
amount of final product that can be made from its contents.” But each of those
cases “involved products that were discrete, countable goods, the number of
which were disclosed on the label.” The instructions on the back label did not
indicate how much protein powder a consumer should mix with 8 oz of milk or
plant-based milk or blend with 8 oz of the consumer’s “favorite beverage.” Nor
did the instructions indicate how much “Flavor Boost” a consumer should mix
with milk, blend into a smoothie, or add into a baked good. While the back
label suggested a consumer could “[a]dd a scoop” of the Product to their
“favorite baked good recipe,” it didn’t specify the type or amount of baked
goods to which a scoop of the Product should be added. Without that, a “scoop”
of protein powder “is not an intrinsically meaningful metric of quantity,” even
when “the consumer can calculate the approximate weight of each scoop.” As
another court said: “A label that states a cannister contains 20 scoops of
protein powder communicates materially less information to a consumer than a
label stating that a cannister contains 20 cookies.”

She also sufficiently alleged that the slack fill was
nonfunctional. It sufficed to allege that (1) “[t]here is no risk of the powder
breaking or sustaining damage if there was less empty space in the Product’s
container,” (2) “the machines used for enclosing the contents of the package
have the capacity to add more content to the containers used to enclose the
contents of the Product,” and “[a]t most, a simple recalibration of the
machines would be required,” (3) “any settling” of the Product “occurs
immediately at the point of fill” because of “the Product’s density, shape, and
composition,” (4) the Product’s packaging “contains no instructions to
consumers that they should mix together the Product’s whey protein powder with
any Flavor Boost within the Product’s pouch container,” (5) “[t]he package is
intended to be discarded immediately after the Product is consumed” and is not
a “durable commemorative package” or “promotional package,” and (6) “Defendant
can easily increase the quantity of the Product in each package (or,
alternatively, decrease the size of the packages) significantly.” These plausibly
alleged that none of the safe harbor provisions in California’s slack fill law applied.

from Blogger https://tushnet.blogspot.com/2026/05/slack-fill-claims-proceed-because.html