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Volume 20, Issue 1
That empty space in your chip bag or other product packages? It may serve a purpose, but that might not stop consumers from suing you.
Imagine this: you’re sitting on a warm beach, far from the cold, damp, dark days of winter. Craving a snack, you rustle around in your beach bag and grasp a puffy bag of potato chips. You tear the bag open, reach inside, and pop a big, salty crisp into your mouth. Ahhhhh, heaven! This moment is brought to you by slack-fill.
“Slack-what?” you may ask. Slack-fill. Read on, and enjoy that bag of chips.
The basics: Slack-fill refers to the difference between the capacity of a container and the volume of the product inside. In short, it is empty space. Think false walls inside a folding carton, an indented package bottom, “fillers” such as paper, or under-filled containers. All of these create slack-fill in a package.
In some cases, such as the potato chip example above, slack-fill is functional; that is, it serves a purpose by protecting the contents of the package from damage caused by unavoidable circumstances (e.g., settling or breakage). In other cases, slack-fill is non-functional space without a sufficient explanation.
Although slack-fill was largely the province of state enforcers for many years, we have seen a recent flurry of litigation alleging that non-functional slack-fill deceives consumers about the true contents of packaged goods. As such, all food and dietary supplement companies should be aware of the risks related to slack-fill.
Insert chip. Read on.
Federal Slack-Fill Law
In 1994, FDA issued its final slack-fill rule: 21 CFR § 100.100, “Misleading Containers,” Section 403(d) of the Federal Food, Drug, and Cosmetic Act.1 The rule provides that, when a container does not allow the consumer to fully view its contents, non-functional slack-fill is misleading. Thus, in order to analyze whether slack-fill is acceptable or potentially misleading under the rule, one must determine why the slack-fill exists in the first place.
Under the rule, slack-fill is considered non-functional unless it meets one of the following criteria:
Although there is no specific numerical value that could adequately describe the amount of non-functional slack-fill that would be considered significant, slack-fill in excess of that necessary to accomplish a particular function is generally considered non-functional slack-fill and may be misleading.3 In addition, FDA has specifically noted that net-weight statements do not provide protection against misleading fill.4
Recent Litigation Examples
In consumer class actions related to slack-fill, plaintiffs commonly allege that they were deceived by overly large packages containing too little of the advertised product. Like other consumer class actions, slack-fill class actions raise the potential for significant monetary exposure, as litigation is brought on behalf of all purchasers in a state or even nationwide.
Courts assessing consumer class actions assess whether, in the context of the product packaging and other market considerations, a “reasonable consumer” would likely be misled by the package. For example, in Fermin v. Pfizer, Inc., Case No. 15 CV 2133 (E.D.N.Y. Oct. 14, 2016), the court determined that packages of Advil did not deceive consumers because the label bore an unambiguous pill count. In a case involving lip balm, the court denied plaintiffs’ argument that packages were misleading. The plaintiffs had argued that the lip balm packages were misleading because a portion of the product was contained in an inaccessible section of the package and could not be reached unless it was dug out. The court determined that a reasonable consumer would not be misled because the packaging design was “commonplace” for lip balm products.5 Cases in which plaintiffs fail to allege that the slack-fill was non-functional and therefore misleading have also been dismissed.6
Other cases have survived the motion-to-dismiss phase. In In re: McCormick & Company, Inc. Pepper Products Marketing and Sales Practices Litigation, MDL Docket No. 2665, Misc. No. 15-1825 (D.D.C. Oct. 17, 2016), McCormick competitor Watkins Inc. alleged that under-filled, opaque pepper containers misled consumers about the relative amounts of pepper in the brands’ products. The court allowed the plaintiff’s Lanham Act challenge to proceed, finding that an accurate statement of weight did not necessarily correct a consumer’s misimpression of product quantity based on the size of a container.
Slack-fill is the latest entrant to the food class-action scene. As a result, most companies are taking a closer look at the claims they put on their product packages. As we have learned from the recent rise in slack-fill litigation, companies should not overlook the form of the packaging as a source of litigation risk.
Kristi Wolff is a partner in the Advertising and Food and Drug Law practice of Kelley Drye & Warren LLP, and Devon Winkles is an associate for Kelley Drye & Warren’s Advertising and Food and Drug Law practice.