Ebner
Ebner v. Fresh, Inc.
Opinion
Lead Opinion
Tashima, J.
ORDER
The Opinion , filed March 17, 2016, and reported at 818 F.3d 799 , is withdrawn and replaced by the Amended , Opinion filed concurrently with this order.
With these amendments, the panel has voted to deny the petition for panel rehearing. Judge Bybee votes to deny the petition for rehearing en banc and Judges Farris and Tashima so recommend. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. See Fed. R. App. P. 35(f). The petition for panel rehearing and the petition for rehearing en banc are denied.
No further petitions for panel rehearing or rehearing en banc-will be entertained.
OPINION
Angela Ebner (“Plaintiff’) alleges that cosmetics and skin care products manufacturer Fresh, Inc. (“Fresh”) deceived consumers about the quantity of lip balm in its Sugar ■ Lip Treatment (“Sugar”) product line. Although Sugar’s label accurately indicates the net weight of included lip product, the tube design uses a screw mechanism that allows only 75% of the product to advance up the tube. A plastic stop device prevents the remaining 25% from advancing past the tube opening. Each Sugar , tube…