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Vol. 9 - Issue 8
December 7, 2020


Big Fight Brewin’: I’m Not Surprised That Someone Filed This Lawsuit


For many years coffee in my house has been stored in a large plastic Folgers container, located in the cabinet above the coffee maker.  It hasn’t had Folgers coffee in it for years [my wife had a Folgers stage].  Rather, whatever kind of coffee we buy – Starbucks, La Colombe, Trader Joes or some uber-organic offering from Whole Foods (grown in a region of the amazon where it rains Evian) -- gets poured into it.    

We go though it very quickly.  Which is why I’ve always marveled at the statement on the container that it makes up to 210 six ounce cups.  I never did the math, but that number always seemed high to me.  That’s a lot of cups of coffee.  Maybe you get that many cups if you only use a super small amount of coffee per cup?  Or maybe you get 210 cups, but they are the size of the ones we used when my daughter was 5 years old and we sat on the floor having tea parties? 

In any event, imagine my surprise, or not, when I saw that a putative class action was filed, earlier this month in the Northern District of Illinois, against Folgers, alleging that it “grossly exaggerated the number of cups of coffee that the Folgers ground coffee products can make in order to induce consumer purchases and to charge consumers more for these products.”  The complaint even includes pictures of the very coffee container in my kitchen.  And it turns out that some Folgers containers claim to make up to 240 cups.    

The complaint in Ellen Moser, individually and on behalf of all others similarly situation v. The J.M. Smucker Company, et al., United States District Court for the Northern District of Illinois, No. 20-7074, reads like a statistics textbook.  It is filled with all sorts of calculations that allegedly reveal how many cups of coffee can come from various containers of Folgers coffee, versus how many are promised on the package.  The plaintiff’s attorneys definitely followed the math class rule of showing their work.

For example, consider this explanation as set out in the complaint:

21. On the back of all the Products, Defendants instruct consumers that they should use 1 tablespoon of ground coffee to make 1 serving/cup of coffee.

22. One tablespoon of ground coffee weighs approximately 5 grams.

23. Based on these standard measurements, it is evident that Defendants grossly overstate the number of servings the Products can make.

24. By way of example, Defendants represent on the 30.5 oz. canister of the Folgers Classic Roast that it "MAKES UP TO 240 6 FL OZ CUPS."

25. As set forth above, one tablespoon of ground coffee is needed to make 1 serving. Therefore, 240 tablespoons of ground coffee are needed to make 240 servings.

26. As set forth above, one tablespoon of ground coffee = approximately 5 grams. Therefore, 1200 grams of ground coffee is needed to make 240 servings [240 tablespoons x 5 grams].

27. However, the 30.5 oz. canister has a net weight of 865 grams. Therefore, it contains only 72% of the amount of ground coffee required to make up to 240 cups of coffee [865 / 1200 x 100%]. This is equivalent to approximately 173 cups of coffee.

28. The same shortfall (i.e., only 173 cups of coffee) is calculated by dividing the total grams of coffee in the 30.5 oz. cannister by the number of grams required to make a single serving [865 grams / 5 grams].

This got me thinking. If a train leaves Chicago at 2 PM, with 139 six ounce cups of Folgers on board, and a train leaves Miami at 4 PM with 912 grams of coffee on board, how may eight ounce cups of coffee can there be when the trains cross paths in Indianapolis? Show your work.

The complaint sets out "promised versus actual" cup numbers for dozens of different types of Folgers coffee products, resulting in the following conclusion:

32. There are 40 varieties of the Products listed in the chart above. Each and every one of them contains substantially less ground coffee than is required to make the recommended number of "up to" servings promised on the packaging. On average, these Products contain enough ground coffee to make only 68.33% of the number of servings promised on the packaging, thus revealing a systematic course of unlawful conduct by Defendants to deceive and shortchange consumers.

I have no idea where this will go.  But since we don’t put Folgers coffee in the Folgers container, I won’t be getting a coupon, for a free 6 ounce cup of Folgers coffee, if there is a settlement.

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