Slack Fill Litigation: Defining Excess Air In Packaging

Every consumer has experienced it: that moment when you open a product, whether it's a box of candy or a container of supplements, and find that the contents occupy far less volume than the container's size suggests.

This frequent source of consumer frustration—the excess air or empty space known as "slack fill"—is the dividing line between lawful packaging and a potential class action lawsuit. While some slack fill performs a critical protective function, nonfunctional empty space fuels the current wave of litigation.

"Slack fill," defined as the difference between a product container's capacity and the actual volume of the product it contains, has become a consistent focus in consumer class action litigation. These lawsuits frequently allege that excessive empty space creates a container that misleads the reasonable consumer regarding the product quantity. Legal analysis centers on whether one of the federally recognized functional safe harbors under the Federal Food, Drug, and Cosmetic Act (FD&C Act) justifies the slack fill.

What Defines Nonfunctional Slack Fill?

In the eyes of the law, not all empty space is bad. The entire legal battle hinges on whether the slack fill is functional (serving a valid purpose) or nonfunctional (serving no real purpose).

Additionally, federal regulations (21 CFR § 100.100) state that the law may consider a container misleading if it prevents a consumer from fully seeing its contents and contains nonfunctional slack fill.

The key inquiry focuses on why the empty space exists, specifically looking for reasons other than those designated as functional.

Regulatory Safe Harbors Under the FD&C Act

For packaged products, the FD&C Act and state consumer protection laws often recognize the following reasons as providing a functional basis for slack fill:

• Protection of Contents: The manufacturing, handling, and distribution processes require space to prevent product damage or breakage.
• Machinery Requirements: Automatic machinery requires specific space to enclose the contents.
• Unavoidable Settling: Natural, unavoidable settling creates space in products like powders and mixes between packaging and retail display.
• Specific Package Function: The manufacturer designs the package to help prepare or consume the product (e.g., mixing or heating).
• Container Accommodations: Mandatory legal labeling, anti-pilfering devices, or handling requirements dictate a minimum package size.

If the empty space cannot be linked to one of these safe harbors, it is typically categorized as nonfunctional.

The "Reasonable Consumer" Standard

The core of these cases involves the "reasonable consumer" standard:

• The Claim: Plaintiffs argue that the physical size of an oversized container can mislead the average, sensible consumer into believing they are receiving a greater quantity of product than is actually enclosed.
• The Defense: Manufacturers often point to the accurate net weight or volume clearly stated on the label as curing any misimpression.

Judicial Viewpoints

In some cases, courts have suggested that an accurate net weight statement does not necessarily fix the initial misimpression created by an overly large, opaque container. Other court decisions have shown a willingness to dismiss cases if the manufacturer provides very clear disclosures or if the nature of the product (like a baking mix that includes a "yield chart" showing how much it makes) may adequately inform the consumer of the true quantity.

The courts continue to evaluate on a case-by-case basis whether the packaging's overall appearance and design would likely deceive the average purchaser.

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