ADventures in Law

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A potato-chip brand once famously boasted, “No one can eat just one.” And of course, no one can. But according to the Food and Drug Administration (FDA), you aren’t going to eat more than 16 (or 28 grams), because that is the “serving size” on the nutrition facts label. But seriously, who stops at 16 unless the bag runs out? And haven’t you sometimes looked at the two-thirds cup serving size on a container of ice cream and wondered who is doing that? Is the FDA’s serving size guidance something that actually reflects how people eat? Well, a federal judge just validated our collective feelings and scored a win for Starbucks in <a href="/wp-content/uploads/2023/07/serving-size-order.pdf" target="_blank" rel="noreferrer noopener">dismissing a class action lawsuit.</a> Starbucks sells cold-brew coffee concentrate, to which you can add water to make a cup of cold brew. According to the FDA, a serving size is 12 ounces, or a cup and a half, which seems like a lot of cold brew, particularly if you are adding ice. Starbucks, as required by law, put the FDA serving size and servings per container on the product nutrition label, but in the recommended directions, they suggested using a smaller serving size of one cup (half water and half concentrate), along with some ice, which, though smaller, still seems like a healthy serving of cold brew. Consistent with those directions, Starbucks put on the label that the product provides eight servings when made as directed.

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Enter the class action plaintiffs’ attorneys, who argued that Starbucks promised eight servings, but the product provides only five servings when mixed according to the FDA serving size. Ergo, consumers were cheated out of their additional three servings at the recommended FDA serving size. A federal judge vigorously disagreed and granted Starbuck’s motion to dismiss, finding that Starbucks had clearly communicated to consumers the basis upon which it had made the eight-servings claim. In giving short shrift to the plaintiffs’ claim that relied heavily on the nutrition facts panel, the judge was skeptical that the average consumer would associate the FDA’s serving size with serving sizes in everyday life. It’s nice to see common sense prevail every once in a while.

Judge Confirms What We All Already Knew About FDA Serving Sizes