Last month, a district court judge in California dismissed a
highly publicized lawsuit in which the plaintiff claimed that
Starbucks' iced beverages contained too much ice and not enough
coffee. The suit was the subject of derision in the media and
general public, and even the district court seemed incredulous that
someone could not know that including ice in a beverage decreases
the amount of the beverage that will be included in the cup. But
the lawsuit still serves to highlight the growing trend of cases
claiming that allegedly deceptive product packaging can cause
consumers to believe they are receiving more food or drink than
what they are actually receiving.
One particular category of this type of lawsuit is so-called
"slack-fill" cases. The essence of these claims —
many of which purport to assert claims on behalf of nationwide
classes — is that product packaging contains too much empty
space, or slack-fill.
Within the last several months, slack-fill lawsuits have been
brought against the makers of Barilla pasta products and the makers
of Sour Patch Watermelon candy. Other recent cases include, among
others, lawsuits against the makers of M&M's Minis, Nabisco
Go-Paks, Rice-A-Roni and Pasta Roni, and McCormick pepper. Although
plaintiffs have so far only resolved a few of these cases
successfully, the uptick in the litigation shows no signs of
The plaintiffs in these types of cases typically rely on federal
law that prohibits the use of "nonfunctional" slack-fill.
According to the FDA, slack-fill is nonfunctional, and thus
prohibited, unless it (1) is required for the protection of the
contents of the package, (2) is needed for the operation of
manufacturing machinery, (3) results from unavoidable product
setting, (4) is necessary for the preparation or consumption of the
product, (5) results from packaging that contains a reusable
container (like gift products), or (6) is needed to meet mandatory
labeling requirements. California has a similar statutory
prohibition against the use of nonfunctional slack-fill.
Companies seeking to avoid the risk of slack-fill litigation
should evaluate whether their packaging of food, drinks, and other
products meets the federal standard. The easiest way to eliminate
potential liability, of course, is to reduce package sizes and thus
eliminate any slack-fill or empty space in product packaging. When
that is not possible, companies should ensure that the empty space
meets one of the six exceptions described above. Particular care
should be given this type of evaluation when a company has reduced
the amount of food or drink in a package without changing the
package size — a change that can leave a company open to
claims of misrepresentation or deception.
Along these same lines, companies can seek to limit their
exposure by taking steps to ensure that their product packaging is
not seen as deceptive. One easy way to do so is by making packaging
transparent, which helps to prevent consumers from claiming that
they did not how much of a product they were receiving. Another
potential safeguard is to provide clear and conspicuous disclosures
about the need for empty space in product packaging — much
like the ubiquitous disclosures about product settling on cereal
boxes and similar products. Finally, internal records are also
important for defending against potential lawsuits — if, for
example, a company's product packaging requires slack-fill for
the manufacturing and packaging process, then a company should
maintain clear and accessible records demonstrating that need.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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