Cutting Some Slack? How to Avoid Slack Fill Litigation

by Baker Donelson

Baker Donelson

Most food and consumer products companies are well aware of the rising tide in "slack fill" (the empty space between a product and its packaging) litigation. A claim goes something like this: a consumer – or, more realistically, member of the plaintiffs' bar – identifies a product appearing to have slack fill in its packaging (think of a bag of potato chips, or a cereal box). A plaintiff is identified and a putative class action is filed, usually under a state consumer protection statute, alleging the packaging is misleading because it tricks consumers into thinking they are getting more product than they actually paid for. At this point, a company's options are generally limited to defending the lawsuit or settling the claim to avoid the uncertainties of litigation. Often times, the decision comes down to the company's financial well-being, the availability of insurance, public relations considerations, and the realities of the environment in which the company operates.

Recently, an increasing number of courts have shown a willingness to throw out slack fill cases at the dismissal stage, increasing the confidence in companies to fight these often non-meritorious claims. For example, on March 27, 2018, in the case of Alce v. Wise Foods, Inc., the United States District Court for the Southern District of New York dismissed a claim alleging that Wise Foods' potato chips were misleading because they contained an excessive amount of slack fill. In dismissing the claim, the Court noted the plaintiffs could not establish that the slack fill in Wise's potato chip bags was "non-functional," and more importantly, that even if the slack fill were "non-functional" consumers have come to expect such slack fill in potato chip bags, and thus no reasonable consumer would be misled. In reaching its conclusion, the Court was persuaded by the fact that the weight of the chips inside the bag was "prominently displayed on the front of each product, in large sized font, in a color differentiated from the package background" and because there was no allegation that the full weight represented was not actually in the bag. Although a growing number of courts have reached conclusions similar to the decision handed down in Wise Foods, the trend in filing slack fill cases has generally not slowed down, and, in some cases, plaintiffs have succeeded in moving complaints beyond the dismissal stage.

Although the case law appears to be moving to a position slightly more in favor of manufacturers and brand owners, companies that currently manufacture, package, or sell products utilizing slack fill should consider these tips to avoid finding themselves in potentially burdensome litigation:

  • Determine whether the slack fill is "functional." Under the Federal Food, Drug, and Cosmetic Act, slack fill is generally permitted if it serves one of six functions: (1) it protects the contents of the package; (2) it's necessary to meet requirements of the machines used to enclose the contents in the package; (3) it results from unavoidable settling during shipping and handling; (4) it serves a need for the package to perform a specific function; (5) the food is packaged in a reusable container with empty space as part of the presentation of the food, or (6) there is an inability to increase the fill level or reduce the package size because, for example, the size is necessary to accommodate food labeling requirements or to discourage theft. If it's determined that the slack fill is functional, be sure to document the regulatory decision-making process in reaching that conclusion.
  • If possible, list the total numerical count of the contents on the product's labeling. For example, if your package contains ten brownies, disclose that on the product's packaging instead of just listing the net weight of the contents. 
  • If possible, clear packaging or packaging with clear components (think of a window into the package) should be utilized.
  • Consider adding fill lines that alert the consumer (and the plaintiff's bar) to the approximate location of the contents within the package.
  • Consider including statements about how the slack fill serves a functional purpose. For example, to allow settling of the product, to protect the contents, or to prevent spillage of the product when opened.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.