How Many Scoops Does It Take To Get To The Bottom?

Deceptive labeling lawsuits over serving size and product weight have proliferated throughout the past few years. Food products from coffee cans to cereals must make claims about the number of servings per bag or container, product net weight and weight per serving. Without regard to whether consumers overfill or underfill their scoops, and without accounting for product settling, plaintiffs typically claim that it takes fewer servings to get to the bottom of the container than is represented on the nutritional facts panel (NFP) of the product label.

For example, in Harvey v. WK Kellog Co., Case No. 2:25-cv-03984, 2025 WL 3706665 (E.D. N.Y. Dec. 22, 2025), a putative class representative claimed that he purchased a 16.2-ounce box of cereal in "reasonable reliance" on the label's advertising that "1 1/3 cups of the cereal is equivalent to 39 grams of the cereal" and that the cereal "contains about 12 servings per container," both of which the plaintiff averred are "erroneously stated" metrics.

The plaintiff claimed misrepresentations and false advertising on the NFP in alleged violation of New York General Business Law Sections 349-50, as well as breach of an express and implied warranty of merchantability. The plaintiff's testing allegedly revealed a 1 1/3-cup serving of the product weighs more than 45 grams, not the 39 grams claimed on the NFP, and thus yields 13.68 percent fewer servings than promised. The defendant claimed federal preemption under the Federal Food, Drug, and Cosmetic Act (FDCA).

As true for many kinds of food products, FDCA regulations require that the serving size for a "cereal" use a reference amount of 15 grams. 21 C.F.R. Section 101.12(b), table 2. The nutrition label must display the serving size as a common household measure, with the reference amount next to it in parentheses. Id. Section 101.9(b)(7). The common household measure used must be the one that "most closely approximates the reference amount." Id. Section 101.9(b)(2)(iii). The "number of servings" shown on the label must be calculated and rounded to the nearest whole number. Id. Section 101.9(b)(8).

In this instance, the court ruled on the defendant's motion for partial stay of discovery that the plaintiff's claim for violations of New York General Business Law Sections 349-50 is meritorious on the grounds that the FDCA prescribed a different household measure than shown on the box and for failure to state correctly the metric mass equivalent of 1 1/3 cups. The defendant also defended on the grounds that there was no challenge to the net weight of the cereal box. The court ruled this insufficient, "particularly when consumers have no way to tell from Product packaging alone which set of information on the label is correct."

It will be another question whether the plaintiff can satisfy the requirements for class certification and whether, in fact, the reasonable consumer relies upon the serving size indicated when purchasing this kind of cereal. Without pre-suit notice of an alleged breach of express warranty, the court determined that the plaintiff's claim would fail. Similarly, without personal injury to the plaintiff, the court determined the implied breach of warranty claim would also fail.

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