Class Claims Filed Against Harry & David Over Under-filled Popcorn Containers

Elizabeth DiNardo, Esq. | Associate Counsel

On February 10, 2017, a disgruntled Harry & David customer filed a punitive class-action lawsuit in New York federal court against the gourmet food and gift company alleging that it deceptively under-filled its popcorn containers.

In the complaint, named plaintiff, Bria Brown, claims that the defendant actively mislead customers into purchasing large opaque cylinder containers of popcorn that a reasonable customer would assume was filled to capacity with product. However, in reality the containers are only filled to about the container’s halfway point. Brown alleges that she purchased a 10-ounce package of Defendant’s Moose Munch milk chocolate-flavored popcorn from a New York City area Macy’s department store assuming it would be filled nearly to the top with popcorn. However, Brown says that when she opened the package, it was only filled halfway to the top with popcorn. 

Plaintiffs argue that compared to other similar products on the market, Harry & David’s products have substantially more empty space or “non-functional slack-fill” that trick customers into thinking they are getting more product than they actually are. Specifically, the complaint accuses the Oregon-based gourmet food company of violating the Federal Food, Drug and Cosmetic Act in addition to violating New York’s General Business Law. Brown said that the defendant’s deceptive practices injured her by depriving her of the benefit of her purchase and she therefore seeks restitution and compensatory damages.

The case is: Bria Brown v. Harry & David LLC, case number 1:17-cv-00999, in the U.S. District Court for the Southern District of New York.

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