Ninth Circuit Puts Starbucks Suit on Ice

Advertising Law

The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a class action challenging the size of Starbucks iced drinks, and agreed with a district court judge that no reasonable consumer would believe an iced drink didn’t contain ice.

Alexander Forouzesh claimed that the coffee giant tricked consumers by using ice to fill its cups to the advertised number of ounces. As advertised, Tall sizes contain 12 ounces, a Grande has 16 ounces and Venti drinks have 24 ounces. He alleged that Starbucks employees were instructed to make the drinks according to standard practices in which clear cups were filled up to a fill line below the stated total and then topped off with ice.

Forouzesh told the court that since customers received less beverage than promised, Starbucks was guilty of breach of warranty, negligent misrepresentation, and violations of California’s Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act.

Starbucks filed a motion to dismiss the suit, arguing that its iced beverages met the expectations of reasonable consumers. A federal district judge agreed, finding the plaintiff’s interpretation of Starbucks’ menu was “strained” and “inconsistent with the understanding of a reasonable consumer.”

“[A]s young children learn, they can increase the amount of beverage they receive if they order ‘no ice,’” U.S. District Judge Percy Anderson wrote. “If children have figured out that including ice in a cold beverage decreases the amount of liquid they receive, the Court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will include both ice and tea and that for a given size cup, some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.”

The Ninth Circuit affirmed.

“The statutory claims fail as a matter of law because no reasonable consumer would think (for example) that a 12-ounce ‘iced’ drink, such as iced coffee or iced tea, contains 12 ounces of coffee and no ice,” the panel wrote. “The fraud claim fails for the same reason because (even assuming there was a representation) justifiable reliance is absent. The claim for breach of express warranty fails because the complaint contains no allegation that Defendant promised that the iced drinks in question would contain a specific amount of liquid, as distinct from a total amount of liquid and ice.”

Agreeing that the district court permissibly concluded that the defects in Forouzesh’s theories of liability could not be cured and that any amendment would be futile, the Ninth Circuit affirmed the dismissal with prejudice.

To read the memorandum in Forouzesh v. Starbucks Corp., click here.

Why it matters: The Ninth Circuit wasted little ink in affirming the dismissal of all the plaintiff’s claims and holding that no reasonable consumer would believe an “iced” drink would not include ice in the calculation of the amount of beverage.



pursuant to New York DR 2-101(f)

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