United States: "Slack Fill" Class Action Is Empty Space

Last Updated: October 27 2016
Article by Steven Boranian

We never heard the term "slack fill" before we started writing for this blog, but it seems to be getting a lot of attention lately. We enjoyed a podcast from NPR's Planet Money the other day discussing slack fill in black pepper containers, and we blogged on the FDA's regulation of slack fill a little more than a year ago.  We have to admit, the words are fun to say.  "Slack fill."  They snap off your tongue with a certain percussive elegance.  Sort of like "Severus Snape."  Or "Coco Crisp," who is an actual person, a switch-hitting outfielder currently vying for a World Series crown with the Cleveland Indians.  (Coco Crisp, whose given name is Covelli Crisp, broke into the big leagues with the Indians in 2002, and he returned to Cleveland just a few months ago after spending six-and-a-half seasons leading off for our beloved Oakland Athletics.  His change from the white cleats to black is a big loss for Oakland and, if the Indians beat the Cubs, a bigger win for Coco.  But we digress.)

For those who missed our prior post on slack fill, the term refers to empty space, like the extra air in a bag of chips. The variant "nonfunctional slack fill" refers to pointless empty space.  It's just there, serving no purpose, just like a recent slack fill class action that recently met its demise in the Eastern District of New York, Fermin v. Pfizer, Inc., No. 15-cv-2133, 2016 U.S. Dist. LEXIS 144851 (E.D.N.Y. Oct. 18, 2016).  In Fermin, the plaintiffs' alleged that they were "tricked" into purchasing ibuprofen because the containers were too big. Id. at *1.  Never mind that the labels prominently and accurately stated exactly what was in the bottles, down to the number of pills.  These plaintiffs alleged that the "excessive empty space" in the packaging misled them into purchasing the product, and they purported to represent a class of purchasers under the consumer laws of multiple states. Id.

The district court had no patience for these allegations. In granting the defendant's motion to dismiss, the district court noted that the plaintiffs had to allege that the packaging was "likely to mislead . . . a reasonable consumer acting reasonably under the circumstances." Id. at **3-4.  In other words, it is an objective standard, and that turned out to be the plaintiffs' undoing.  As the court bluntly held, no one could reasonably have been deceived when the pill counts were right there on the bottles:

Plaintiffs provide no basis for disregarding the clearly stated pill-counts on the labels, nor do they dispute the fact that the tablet-count is clearly and prominently displayed on each of the labels. Plaintiffs' own exhibits show that the labels plainly negate any supposed "reliance" on the size of the packaging as it is impossible to view the products without also reading the total number of pill contained in each package.  It defies logic to accept that the reasonable consumer would not rely upon the stated pill count.

Id. at *5 (emphasis added). Recall that this is on a motion to dismiss.  Not only did the plaintiffs' allegations "defy logic," they failed to describe any deceptive practice as a matter of law.  That's pretty good, and the district court was very direct in so ruling.  Here is what else the court said:

This Court finds, as a matter of law, that it is not probable or even possible that [the defendant's] packaging could have misled a reasonable consumer. . . . The suggestion that [product packaging] laws should cover [the plaintiffs'] failure to read an unambiguous tablet-count does not pass the proverbial laugh test.

Id. at **5-6. The court did not explain how "the proverbial laugh test" meshes with pleading standards under Rule 12(b)(6), but it made its point loud and clear.  With accurate pill counts staring consumers right in their faces, containers with extra space cannot possibly deceive anyone.

To add insult to injury, the district court also held that the plaintiffs failed to establish subject matter jurisdiction because they placed no amount in controversy.  Zero.  The plaintiffs received "exactly what they paid for and suffered no loss." Id. at **6-7.  We understand that the amount in controversy can be a barrier to diversity jurisdiction or CAFA jurisdiction in "no injury" cases like this one.  We also wonder what the lack of subject matter jurisdiction does to the rest of the order.  Is it still res judicata?  Could these plaintiffs try to re-file in another court (at the risk of again failing the "proverbial laugh test")?  We don't know, but we do know that this judge was particularly blunt:  "[N]o plaintiff would be able to prove damage under the facts pleaded here." Id. at *7.  Or, as we would paraphrase it, this class action was nothing more than pointless empty space.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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