If the outside of a food package is the same, especially for a food you don’t buy very often, do you notice? Longtime Consumerist readers might, but most people wouldn’t. Last year, spice giant McCormick quietly shrank down the contents of its boxes of black pepper, but kept using the same size container. Tiny competitor Watkins noticed, and filed a federal lawsuit against McCormick accusing it of false advertising. A judge decided this week that the lawsuit could go forward.

McCormick didn’t see the problem with this difference in its packaging:

Mark Jacobs, chief executive of Watkins, explained to the Minneapolis Star-Tribune that his company was new to the spice market, and noticed that McCormick was dropping its pepper prices while the wholesale price was going up. Wondering how such a thing was possible, that’s when the company noticed that the containers were the same size, but sometimes considerably lighter.

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In her opinion [PDF], the judge noted that McCormick’s argument that its product packaging isn’t advertising or promotion “defies common sense and law.” Often the label and packaging are the only chance that a company has to communicate to potential customers what their product is about.

A box that’s the same size as a competitor’s product even though it contains two fewer ounces of pepper is a very strong signal.

The Watkins suit has been combined with consumers’ class action suits over the pepper shrinkage, and the whole case will go forward in January.

Pepper partisans can keep fighting about tin sizes, judge says [Minneapolis Star-Tribune]

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