Not Edible, But Still Empty: Manufacturers of Non-Food Products are also Targets for Slack Fill Litigation.

THE mere mention of the phrase "slack fill" engenders a level of discomfort to manufacturers of certain products, based on the increasing number of class actions and commercial litigation that are based on this term. "Slack fill" generally refers to the difference between the actual capacity of a container and the volume of product contained therein. According to the Food and Drug Administration (FDA), slack fill is often necessary in the packaging of products, as it may serve to protect the contents of the package, allow for the machine used to enclose the package contents to do its work, enable the package to perform as intended, among other uses. 1

Manufacturers should be more concerned about "nonfunctional slack fill," the empty space in a package that is filled to less than its capacity for reasons not approved by the FDA. Over the last nine years, the number of food-related slack fill federal class action lawsuits increased from 20 in 2008 to more than 110 in 2015, and this growth does not include individual plaintiff slack fill lawsuits filed during this period. 3 While there is no private right of action under the Federal Food, Drug, and Cosmetic Act (FDCA) or FDA regulations for nonfunctional slack fill claims, many of these lawsuits are brought pursuant to state consumer protection laws that mirror the federal laws.

This article assesses the successes and failures of slack fiiiiiigation in the context of consumer food products and describes the initial attempts to expand slack fiiiiiigation to non-food products. The article also suggests actions that companies can take to avoid being the target of slack fill lawsuits.

  1. Food-Related Slack Fill Litigation

    Most of the cases involving nonfunctional slack fill have been filed in the food context, and concern a variety of foods including box candy, 3 gum, 4 cookies, 5 protein powder, 6 and even packaged sandwiches and wraps. 7 A significant number of the food-related slack fill lawsuits have been filed in Missouri, California, and New York courts. According to a recent report by the United States Chamber Institute for Legal Reform, the law firms apparently leading the slack fiiiiiiigation parade are based in those states, making it less of a mystery why these venues are so popular. 8

    Results of food-related slack fill suits have been mixed, as the courts hearing these lawsuits in these forefront jurisdictions have both granted and denied defendants' motions to dismiss and motions for summary judgment. 9

    In White v. Just Born, a class action, the district court denied the defendant's motion to dismiss in a slack fill case concerning Mike & Ike and Hot Tamales candies. 10 Plaintiffs alleged that the defendant violated the Missouri Merchandising Practices Act (MMPA) by selling candy that was packaged in a misleading manner, in that the candy was packaged in "opaque, cardboard containers" that displayed net weight and serving size.11 Each package was approximately 35 percent empty, which the plaintiffs alleged had no other purpose but to mislead consumers into thinking they were "purchasing more [p]roduct than was actually received." 12 The court denied the motion to dismiss because under the MMPA, which is construed broadly, it is not apparent that a reasonable consumer would not be misled by this packaging. 13 The court explained that the plaintiffs "ha[ve] alleged, at minimum, that the packaging unfairly suggests the boxes contain more product than they actually do, or tends to or has the capacity to mislead consumers or to create a false impression." 14 Moreover, even though the box displayed net weight and serving size information, "[n]arrowly focusing on an aspect of the labeling does not serve the purpose of the MMPA." 15

    Likewise, in Bratton v. Hershey Company, another Missouri class action, the court was not convinced that the presence of net weight and serving size information on the face of the box was sufficient to overcome the plaintiffs' claims.16 The court held that the plaintiffs' allegation that the candy boxes contained about 29 percent or about 41 percent of nonfunctional slack fill depending on the type of candy 17 was sufficient to state a claim, and the plaintiffs "plausibly alleged, at minimum, that the packaging unfairly suggests the boxes contain more product than they actually do, or tends to or has the capacity to mislead consumers or to create a false impression." 18 In Bratton, the court relied on the existence of the federal prohibition against slack fill to support its finding that a consumer would be reasonable to conclude "that the package of candy he purchases will not have...

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