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:
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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.
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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.
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If possible, clear packaging or packaging with clear components (think of a window into the package) should be utilized.
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Consider adding fill lines that alert the consumer (and the plaintiff's bar) to the approximate location of the contents within the package.
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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.
