Consumer Alleges Deceit; Court Rules that Reasonable Consumers Account for the Ice

–by Erin Shea

Source: Galanis v. Starbucks Corporation, No. 16-C-4705, 2016 WL 6037962 (N.D. Ill. 2016) (all internal citations omitted).

Abstract:  The Northern District of Illinois concluded that a reasonable customer understands the term “fluid ounces” to indicate the volume of a container and not the contents.


Starbucks customer Steven Galanis was recently disappointed with his iced Starbucks beverage. Galanis’ disappointment rose to such a level that he filed a lawsuit, alleging that Starbucks deceives its customers by “misrepresenting the volume of its cold drinks because much of the volume is taken up by ice.” Galanis argued that Starbucks was deceiving the customer by advertising the size of its cups rather than the amount of liquid that a customer receives with the order of an iced beverage. For example, Starbucks advertises that an iced drink has twenty-four fluid ounces. Galanis believes that drink should have twenty-four fluid ounces of beverage before the ice is added.

Galanis filed suit in the Northern District of Illinois and argued that this misrepresentation constituted (1) breach of express warranty; (2) breach of implied warranty of merchantability; (3) negligent misrepresentation; (4) unjust enrichment; (5) fraud; (6) a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act; and (7) a violation of the Illinois Uniform Deceptive Trade Practices Act. In response, Starbucks filed a motion to dismiss for failure to state a claim.

In order to succeed on a cause of action under the Consumer Fraud Act, Galanis needed to prove that (1) Starbucks engaged in a deceptive act or practice; (2) Starbucks intended that consumers rely on the deception; (3) this deception involved trade or commerce; (4) the deception caused actual damage to the consumer; and (5) Starbucks’ deception proximately caused the damage to the consumer. A statement will be considered deceptive if it “creates a likelihood of deception,” and “misled a reasonable consumer,” in the totality of the circumstances. A court may dismiss a claim under this theory if the statement was not misleading as a matter of law.

The court sided with Starbucks and concluded that a reasonable consumers knows that the measurement of fluid ounces refers to volume, not content, and “if the consumer chooses an ‘iced’ drink, the reasonable consumer knows that the container (whatever its volume) will be filled with both solid ice and fluid beverage.” The court stated that the mere fact the volume of the drink is measured using a phrase that contains the word “fluid,” does not mean all the contents need to be fluid. A reasonable consumer would expect there to be ice in the iced drink.

The court supported its finding of reasonableness by relying in part on a recent California district court decision that stated, “children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive.” The court noted that sellers do not normally list the fluid ounces available, and simply demonstrate by display the size choices available to the customer. The reasonable consumer understands that even though Starbucks displays its cups and lists the fluid ounces, the ounces indicate the volume of the container, not the contents of the container. The court finished by stating, “including ice, which of course is not fluid (as the parties ‘helpfully’ point out . . . ), in an iced drink does not make a menu listing the size of the drink in terms of ‘fluid ounces’ a deceptive statement.” Since all of Galanis’ claims required a misleading statement, and the court did not find that one existed, the court granted Starbucks’ motion to dismiss on all counts.

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