Fill'er Up!

• Author: Robert Loerzel
• Pages: 16-18

The Docket

EDITED BY KEVIN DAVIS / KEVIN.DAVIS@AMERICANBAR.ORG

PHOTOGRAPH BY LUFEETHEBEAR/SHUTTERSTOCK.COM

National

Pulse

16 || ABA JOURNAL SEPTEMBER 2018

Fill ’er Up!

Candy and snack companies are being sued for selling packages with

empty space inside instead of extra product

By Robert Loerzel

“Slack fi ll” isn’t a phrase you often hear

in everyday speech. Most pe ople don’t

even know what it means, even though

they have experienced it. Ac cording to the

U.S. government’s defi nition, “slack fi ll is

the di erence between the actu al capacity of a container

and the volume of product contained therein.” In other

words, it’s that empty space you were disappointe d to

fi nd inside a box of candy you bought at a movie theater

—when the box turned out to be only half f ull. And it’s

the air inside a bag of potato ch ips—all of that space

above and ar ound the chips.

“This is one of those issues t hat gets consumers riled

up. They feel cheated,” says Edgar Dworsky, a former

Massachusett s assistant attorney general who’s now a

consumer advocate in Bos ton running the Consumer

World website.

But does feeling cheated justif y suing? Some people

clearly think so. Acc ording to a 2017 report by the U.S.

Chamber Institute for L egal Reform, plainti s lawyers

fi led at least 29 lawsuits in 2015 alleging th at companies

cheat shoppers with deceptively la rge packages—followed

by another 37 slack-fi ll cases in 2016. Those tallies ar e

mostly federal case s, without counting potentially dozens

of state lawsuits.

“I think it’s only grown sinc e we wrote that report,”

says Cary Silver man, a partner at Shook, Hardy & Bacon

in Washington, D.C., who co-authored the U.S. Cha mber

report with James Muehlberger, a part ner in his fi rm’s

Kansas Cit y, Missouri, o ce. “They’re nuisance lawsu its,”

Silverman says. “ They are extremely easy to bring. Go

over to the supermarket and shake a b ox. And if it rattles,

that’s a lawsuit. ... It makes a mockery of the c ivil justice

sys tem .”

But Ryan J. Clarkson, managi ng attorney at the

Clarkson Law Firm i n Los Angeles, says he has a higher

purpose in mind when he represents pla inti s agains t

candy companies. “Sla ck-fi ll litigation is important to

make sure manufac turers are using packaging that i s

not false, deceptive or mislea ding,” he says. “It’s all

about corpor ate accountabilit y.”

Maia Kats, di rector of litigation for the Washington,

D.C.-based Center for Science in the Public Interest , says

many slack-fi ll cases have merit. “Clearly, if you are a chip