United States: Class Action Plaintiffs Target Snack Foods In Latest Round Of "Slack-Fill" Suits

Last Updated: April 18 2018
Article by Neil Austin

Have you ever purchased a bag of snacks only to open it up and feel cheated by the air-to-snack ratio? Does empty space in a bag of chips leave a bitter taste in your mouth? Does your snack-time routine involve the use of a ruler? If you're like most people, the answer to all three of these questions is probably "no."

(Source: Complaint in Morrison v. Barcel USA, LLC (S.D.N.Y.))

But judging by a slew of class action lawsuits filed recently, some consumers have a different perspective. Fed up with snack food packaging they contend is deceptively larger than necessary, these spurned snackers are taking their grievances to federal court.

Federal Court Snack Attack

Since the beginning of the year, consumers have filed at least five nationwide class actions alleging that popular snack food packaging contains too much empty space:

  • Reaves v. BFY Brands, Inc. (S.D.N.Y) (Popcorners Popped Corn Chips)
  • Gillespie v. Taste of Nature, Inc. (C.D. Cal.) (Chocolate Chip Cookie Dough Bites)
  • Kpakpoe-Awei v. Storck USA, L.P. (S.D.N.Y) (Werther's Original Sugar Free Chewy Caramels)
  • Green v. Sweetworks Confections, LLC (S.D.N.Y) (Sixlets Chocolatey Candies)
  • Morrison v. Barcel USA, LLC (S.D.N.Y.) (Takis Rolled Tortilla Chips)

In each case, plaintiffs allege that they were tricked into purchasing particular snack food products based on so-called "nonfunctional slack fill"—a phrase used in FDA guidance to describe the difference between the capacity of a container and the volume of product in the container. Plaintiffs contend that the size of the packaging fooled them into believing that they were getting more product for their money, even where the product volume was accurately identified on the label.

Baked From The Same Recipe

Plaintiffs targeting snack food brands with slack-fill suits follow the same basic recipe.

First, they cite FDA regulations that describe as "misleading" any container that does not allow the consumer to fully view its contents and contains nonfunctional slack-fill. These regulations do not provide an independent basis to file suit, but they do provide plaintiffs a hook to allege deception under state law.

Second, they plead violations of one or more states' consumer protection statutes—generally states that have both large populations and favorable consumer protection or false advertising statutes. California, New York, Florida, Illinois, and Missouri are popular choices. This allows plaintiffs' counsel to maximize the number of potential class members and increase the likelihood of surviving a motion to dismiss, after which the settlement value usually increases.

Third, they typically include generic common law claims such as unjust enrichment, common law fraud, or quasi-contract to reach potential class members in states without strong consumer protection laws.

A Mixed Bag

Past efforts to sue companies for alleged slack-filled packaging have not always been successful. Many judges have been highly skeptical of such claims. For example, in dismissing a slack-fill case involving the over-the-counter medicine Advil, District Judge Sterling Johnson of the Eastern District of New York rebuked plaintiffs for bringing a claim that "does not pass the proverbial laugh test." Not only did he find that plaintiffs provided "no basis for disregarding the clearly stated pill-counts on the labels," but he also concluded that the court lacked jurisdiction under the Class Action Fairness Act because plaintiffs "received exactly what they paid for" and therefore suffered no loss.

However, not all judges have taken this view, particularly in cases where the quantity of product is not reported as a fixed count (like Advil) but instead is reported by weight (like snack food). For example, in a case involving chocolate covered raisins, Judge Henry Autrey of the Eastern District of Missouri recently denied the defendants' motion to dismiss, finding under applicable Missouri law that the dimensions of the opaque candy boxes at issue might reasonably suggest to consumers how much candy is in them.

This diversity of approach has allowed slack-fill suits to survive in spite of the occasional rebuke from skeptical judges. Until judges begin speaking with one voice on the issue—which is unlikely to happen anytime soon—expect to see more of these cases.

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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