On July 10, a federal judge in Washington, D.C., issued a significant opinion examining when food manufacturers accused of improperly using “non-functional slack fill” may be subject to class action litigation. See In Re: McCormick & Company, Inc., Pepper Products Marketing and Sales Practices Litig., MDL No. 2665, Misc. No. 15-1825 (D.D.C.). Non-functional slack fill class action litigation has been filed against a host of companies in recent years and continues to be a headache for manufacturers. Judge Ellen S. Huvelle’s lengthy and thoughtful opinion was largely a win for McCormick but also contained victories for plaintiffs and some important lessons for those who wish to steer clear of peril.
McCormick was sued after it allegedly reduced the weight of ground pepper in its tins by 25 percent and reduced the weight of peppercorns in its pepper grinders by 19 percent, while making no corresponding changes in container size or price. Plaintiffs moved to certify multistate and single-state classes of consumers with statutory consumer protection or unjust enrichment claims. The Court declined to certify any multistate classes or any single-state unjust enrichment classes because, in either context, the plaintiffs failed to demonstrate that common questions of law or fact would predominate over questions affecting only individual members. However, the Court granted certification of three single-state classes (California, Florida, and Missouri) of individuals asserting statutory consumer protection claims because those states’ statutes permit causation to be established by common rather than individualized proof.
Judge Huvelle’s opinion is noteworthy in several respects. First, it reinforces the need for manufacturers to be cautious when modifying the amount of product in their containers. Manufacturers should avoid decreasing net weight without also redesigning product containers, adding fill lines or “actual size” imagery, or otherwise disclosing the change in net weight to consumers.
Second, Judge Huvelle’s opinion is one of very few resolving class certification issues in the context of non-functional slack fill violations, and is by far the most thorough. In contrast with others, it does not focus on issues of statutory standing or the implied class certification element of ascertainability, although those issues were raised in briefing. Defendants facing slack fill litigation should consider whether these arguments could have greater traction in their cases.
Third, any manufacturer facing a nationwide class action suit based on slack fill allegations would do well to think deeply about the variations in laws that Judge Huvelle identified as “material” and “the most significant” – differences in the burden of proof, in definitions of key concepts like “deception” and “materiality,” and in terms of whether the plaintiff is required to plead and prove causation and injury. These are all potentially winning defense arguments for the next class certification battle.
