Halo Top routinely under-fills its pints, alleges lawsuit, ‘dramatically so, at times…’

By Elaine Watson contact

- Last updated on GMT

Halo Top routinely under-fills its pints, alleges lawsuit, ‘dramatically so, at times…’

Related tags: Halo Top, Ice cream

A month after being hit with a lawsuit alleging it made false and misleading representations about its light ice cream, Halo Top has been targeted again, this time with a proposed class action alleging it routinely under-fills its pints, “and has been doing this for years.”

A light ice cream sweetened with erythritol, organic cane sugar and organic stevia leaf extract, Halo Top's sales growth has been nothing short of meteoric since it launched in 2012, with sales in the four weeks to July 16, 2017 overtaking those of category giants from Ben & Jerry's to Breyers, according to IRI data​​​.

However, like many successful CPG brands, it has now become the target of plaintiff's attorneys, finding itself at the receiving end of a lawsuit​* filed in New York on May 9 accusing it of misleading shoppers by presenting itself as a regular ice cream, rather than a light ice cream, and a second suit,** filed on June 15, accusing it of routinely under-filling pints.

In the latest complaint** filed in California, plaintiffs Youssif Kamal and Gillian Neely allege that they “paid for a full pint of Halo Top ice cream but did not receive a full pint.”

The amount of the alleged under-filling “appears to be random to consumers, it can vary in amount of under-filling and appears to be unrelated to flavor of ice cream or the location of purchase​,” argues the complaint, which alleges violations of California consumer protection laws and breach of implied contract.

“In short, it is difficult (if not impossible) for any consumer to know – until after purchase and upon opening the container – whether or not they will receive a full pint,” ​add the plaintiffs, ​who seek to represent a nationwide class that “likely consists of hundreds of thousands, if not millions of people.”

Halo Top is aware of the problem, they further allege, citing a ‘low fill form response​’​ form on its website “specifically for consumers to report under-filled pint containers to Halo Top.” ​[Editor's note: the form does not specifically mention underfilling.]

A Halo Top​​ spokesperson said the brand does not comment on pending litigation.

Attorney: Halo Top will want to frame the issue as one of slack fill, and then argue that it falls within a safe harbor

Attorneys we contacted about the case said much would depend on whether Halo Top could frame this as a 'slack fill' issue.

California prohibits so-called ‘nonfunctional slack fill,’ where empty space in a package is unwarranted, but allows empty space in certain circumstances, Alston & Bird attorney Laura Venker told FoodNavigator-USA.

Thiscould be a slack fill issue if the packages are consistently under-filled, which plaintiffs want to avoid, due to California's many safe harbors. However, if the package contents are truly inconsistent, as the plaintiffs allege, then it will be more difficult for Halo Top to characterize the issue as one of slack fill.”

She added: “The plaintiff is almost certainly trying to avoid framing Halo Top's alleged underfilling as a slack fill issue because the plaintiff is concerned that Halo Top will be able to demonstrate that, if underfill exists, the package is not filled to "substantially less than its capacity" or, if it is, the underfill is due to one or more of the reasons permitted under California law.

“Halo Top will want to frame the issue as one of slack fill, and then argue that it falls within a safe harbor - that its pint package is not filled to ‘substantially less than its capacity’ or, if it is, the underfill is due to one or more of the reasons permitted under California law - likely, the requirements of machines used for enclosing package contents, unavoidable product settling, or the need to use a larger-than-required container to provide adequate space for required labeling.”

Attorney: This case differs from typical slack fill cases

William Dance, attorney at law firm Tucker Ellis, told us: "This claim differs from the typical slack fill claim because slack fill claims contend that the size of the package deceives consumers into believing there is more content inside than is actually there even though the contents are accurately stated on the packaging.  Here, plaintiffs contend that Halo Top states a net volume on its packaging – a pint – but that the package actually contains less than a pint net ice cream volume."

FDA regs allow for 'reasonable variations' he said, but state that, 'Variations from stated quantity of contents shall not be unreasonably large.'

He added: "Halo Top’s initial defense will probably be a motion to dismiss contending that plaintiffs fail to state sufficient facts to support their claim.  Since they do not state any specific facts, but rather only vague, broad generalities, Halo Top has a strong argument there."     

 If the motion to dismiss fails or if plaintiffs come back with specifics in an amended complaint, Halo Top would "probably defend itself by asserting that FDA regulations preempt any state regulations that differ and that the standard by which plaintiffs’ claims must be evaluated is not a reasonable consumer standard but whether the labeling and contents conform to FDA regulations, and that they do conform," ​he said.

Finally, while the complaint notes that Halo Top has a form​ for consumers to raise product issues that brings up the title 'low fill form response' on web browsers, the form itself "makes no mention of underfilling as a specific problem to report,"​ noted Dance. "That is a bad sign for plaintiffs’ credibility."

*The case is Josh Berger et al v Eden Creamery​ 1:18-cv-02745 filed May 9 in the Eastern district of New York by Joshua Levin-Epstein of Levin-Epstein & Associates PC, and Spencer Sheehan of Sheehan & Associates PC on May 9.

**The case is Kamal et al v. Eden Creamery​, LLC 3:18-cv-01298 filed in the southern district of California by the law offices of Andrew J Brown on June 15.

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3 comments

Halo Top underfilling its pints

Posted by Linda W,

I returned my ice cream back to Plum Market in Michigan for this very reason. I know that all other companies I purchase in pint size or quart size of their products are filled to the very top.

I was happy that our market gave me a refund and I will never buy their products again because of their greed.

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Halo Top

Posted by Janet Legge,

I have photos of the pints I have purchased that are 1/2 way filled or so damaged it is ridiculous. I complained on their FB page and they provided me with a form to fill out. I never sent the issues with the pints that are not filled properly but wanted to send forms in for the Peanut Butter ice cream.

I had been buying the 4 packs of Peanut Butter Ice Cream at Costco and almost none had not even a drop of Peanut Butter in them. It is getting better now with at least some PB in them. The quality control of that company is horrible. I am surprised they have not been sued for more quality issues.

I will never purchase another pint of mint chip from them as it is the most disgusting blob of glue.

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Halo Top

Posted by Kelly C,

I am glad I am not the only one that this happens to. I press around the container before I purchase and I can feel the air pockets. It happens way too often. I have figured out how to find the full ones but I do believe it is intentional on Halo's part.

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