The Southern District of New York recently dismissed a putative class action against Cytosport, the maker of Muscle Milk protein powder. The plaintiff, Orlando Bautista, alleged that he bought a container of Muscle Milk protein powder for $28 but was “surprised and disappointed” to discover that the package contained roughly 30% empty space. The suit claimed violations of New York state consumer fraud laws, fraud, negligent misrepresentation, and unjust enrichment for allegedly selling Muscle Milk protein powder with “nonfunctional slack-fill.”

The plaintiff alleged that the empty space in Muscle Milk containers constituted nonfunctional slack-fill under the federal Food, Drug, and Cosmetic Act (“FDCA”) regulations, and claimed a violation of the New York Deceptive Trade Practices Act. Judge Seibel dismissed the case without leave to amend because the plaintiff’s conclusory allegations provided no factual basis to state such a claim. The court cited the Northern District of California’s recent dismissal of another slack-fill case, Bush v. Mondelez Int’l, for the point that merely reciting the FDCA’s safe harbors is insufficient to state a consumer deception claim. The court found that plaintiff’s assertion that the 30% empty space was not used “to protect product, necessary for enclosing the product, or because of settling,” was unsupported by facts and stated in a conclusory fashion.

The plaintiff’s fraud claims were similarly dismissed because he failed to plead facts about the “materially false and misleading representations regarding the size, volume, and contents of the product” with particularity and sufficient plausibility. Additionally, the negligent representation claim was dismissed because the transaction between Cytosport and the plaintiff did not establish a “special relationship” and the complaint failed to plausibly allege that the slack-fill was nonfunctional. Finally, the court dismissed the unjust enrichment claim as being duplicative of the other causes of action.

Plaintiff filed his initial complaint in November 2015 and subsequently twice amended. Judge Seibel declined to grant leave to amend again sua sponte because the plaintiff failed to cure deficiencies in prior pleadings, did not ask to amend again, and did not appear to be in possession of facts that would cure the pleading deficiencies.

The Muscle Milk suit is the latest in a series of slack-fill lawsuits that have arisen in the past few years. Judge Seibel’s decision highlights the need to allege non-conclusory facts to state a plausible claim at the pleading stage in these slack-fill suits to avoid being crushed by the weight of dismissal.