Complaints regarding the amount of product contained in a particular package appear to be the new battlefront on which plaintiffs are waging war on a wide range of consumer product manufacturers. The lawsuits are spurred by a set of regulations, issued by the U.S. Food and Drug Administration (FDA) pursuant to the Food, Drug, and Cosmetic Act (FDCA), that regulate the amount of slack fill that can be contained in the packaging of consumer foods. These regulations apply to a myriad of consumer products including snacks, candy, spices, lip balms, detergents, and nutritional supplements.

Slack fill is defined as “the difference between the actual capacity of a container and the volume of the product contained therein” (i.e., the empty space in a product’s packaging). 21 C.F.R. 100.100(a). The FDA’s regulations allow for a certain amount of slack fill that is necessary for:

• Protection of the contents of the package; 
• The requirements of the machines used for enclosing the contents in such package; 
• Unavoidable product settling during shipping and handling; 
• The need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of a food), where such function is inherent to the nature of the food and is clearly communicated to consumers; 
• The fact that the product consists of food packaged in a reusable container where the container is part of the presentation of the food and has value which is significant in proportion to the value of the product and independent of its function to hold the food. . . ; and 
• Inability to increase the level of fill or further reduce the size of the package.

Id. Any amount of slack fill that is not designed for one of the six permissible purposes is considered “non-functional slack fill” and is prohibited as misleading to consumers. 

Slack fill litigation is on the rise as plaintiffs allege that companies are deliberately including slack fill in their packaging to deceive consumers into paying higher prices for less product. Because slack fill is regulated at the federal level, nationwide putative class actions are an attractive vehicle for alleging violations of the FDCA. Plaintiffs generally accompany claims of FDCA violations with claims for unfair or deceptive trade practices and common law fraud under various state regimes. If successful, large putative class actions can create significant exposure for food and beverage manufacturers. 

This year alone for example, a candy manufacturer was sued for allegedly including only 28 candies when the box had the capacity to hold 50 pieces of candy, and Mars, Inc. was sued because it allegedly under-filled tubes of M&M minis. Recently, a large pharmaceutical corporation was accused of deceiving consumers into buying larger bottles of an over-the-counter pain reliever by incorporating excessive slack fill. Each of these cases was dismissed for failure to state a claim or by voluntary dismissal. 

Although manufacturers have been the primary target in slack fill class actions, retailers have not been immune from suit either. At least one big-box store and other unnamed retailers are defending a multidistrict litigation action alleging that the retailers, which market and sell private label brands of McCormick pepper, have deceived consumers by including impermissible slack fill in pepper containers. The McCormick MDL is pending and is currently in the class discovery phase. 

Most slack fill cases have been met with skepticism by the judiciary and have been dismissed in the early stages. Indeed, at least one court claimed that a plaintiff’s slack fill allegations did not “pass the proverbial laugh test.” However, as the courts continue to define all of the ways these complaints can be found wanting, it is likely that the plaintiffs’ bar will pick up the slack and evolve the nature of these lawsuits to withstand early dispositive motions. 

Although the ultimate success of slack fill litigation remains to be seen, all signs indicate that slack fill litigation will remain a trend well into 2017. Manufacturers of consumer goods and food products should be proactive in ensuring compliance with the FDA’s regulations governing slack fill. Companies can minimize their exposure to slack fill and misrepresentation claims by packaging products in clear containers so consumers cannot claim they were unaware of how much product they were purchasing or designing conspicuous labels and warnings to consumers. Additionally, companies should maintain records memorializing the decision-making process for why a container was designed the way that it was for a certain product.