Starbucks’ Cup Overflows With Victory in Underfilled Cups Suit

Advertising Law

A California federal court judge poured out what was left of a putative class action alleging Starbucks underfilled its latte and mocha beverages.

A trio of coffee lovers sued the national chain last year, claiming that in an effort to cut down on costs, drinks were uniformly underfilled pursuant to a standardized recipe that called for cups to be filled a quarter inch short of the brim. Starbucks moved for summary judgment, arguing that the recipe afforded room for milk foam—one of the listed ingredients—to take up the remainder of the cup volume.

Reviewing each of the plaintiffs’ three theories—that the capacity of the cups is exactly the promised beverage volume, that milk foam added to lattes does not count toward the promised beverage volume, and that the total volume of the ingredients used to make lattes does not add up to the promised beverage volume—U.S. District Judge Yvonne Gonzales Rogers rejected each in turn.

The court noted that Starbucks requires its suppliers to manufacture cups for hot drinks with volume capacities that are at least 8 to 12 percent greater than the promised beverage volume, and the plaintiffs failed to present evidence that any actual cups did not comply with these requirements. Accordingly, the cups with the additional space for milk foam provided the promised amount of beverage volume.

Regarding their second theory, the plaintiffs told the court that the milk foam added to the top of Starbucks lattes did not count toward the volume of the beverage. But since milk foam is a component of a latte—a fact recognized by the plaintiffs—this theory also failed, the court said.

“[N]o reasonable consumer would be deceived into believing that Lattes which are made up of espresso, steamed milk, and milk foam contain the Promised Beverage Volume excluding milk foam,” Judge Rogers wrote. “Further, when a reasonable consumer walks into a Starbucks and orders a Latte, ‘that consumer knows the size of the cup that drink will be served in and that a portion of the drink will consist of [milk foam].’”

Although the plaintiffs proffered a pair of online surveys and accompanying expert opinion that 70 to 80 percent of consumers expect that foam “is in addition to” the promised beverage volume of a latte, the court was not persuaded.

“First, as an initial matter, expert testimony is not necessary to establish whether reasonable consumers believe that milk foam counts toward the volume of a Latte when it is undisputed that milk foam is a component of the same,” the court wrote. “Plaintiffs allege that a Latte is comprised of three ingredients: espresso, steamed milk, and milk foam. The Court finds that a reasonable consumer who purchases a Latte would not expect to receive a beverage which contains the Promised Beverage Volume exclusive of one of those components, namely milk foam.”

The court also took issue with the reliability of the surveys and the survey questions, which it found to be leading and suggestive.

As for the final theory that the “recipe cards” used by Starbucks baristas fell three ounces short of the promised beverage volume, the plaintiffs forgot to account for the fact that the recipe calls for cold milk and the finished product contains hot milk, the court said. As milk is aerated and steamed, it expands, taking up more room in the cup.

“Accordingly, the cold milk measurements indicated on Starbucks’ steaming pitchers and Beverage Recipe Cards fail to raise a triable issue as to underfilling because plaintiffs make no showing that the sum of espresso, steamed milk, and milk foam results in Lattes which are less than the Promised Beverage Volume,” the court concluded.

Finding the plaintiffs failed to raise a triable issue of fact as to whether Starbucks made a false statement or misrepresentation pursuant to any of their three theories, the court granted the defendant’s motion for summary judgment.

To read the order in Strumlauf v. Starbucks Corp., click here.

Why it matters: For the third time in recent years, Starbucks has won dismissal of a class action over the volume of its drinks. Two other lawsuits made similar claims that the coffee chain underfilled its drinks and then added ice to fill up the unused space. Federal courts in California and Illinois decided that reasonable consumers would understand that ice counts toward the content of their drinks—just as Judge Rogers did with regard to milk foam.



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