August 14, 2020

Volume X, Number 227

August 14, 2020

Subscribe to Latest Legal News and Analysis

August 13, 2020

Subscribe to Latest Legal News and Analysis

August 12, 2020

Subscribe to Latest Legal News and Analysis

Dismissal of Movie Candy Slack-Fill Case Leaves Sour Aftertaste: New York Federal Court Rejects Labeling Disclosure Defense

"Slack-fill" cases are on the rise across the country. Consumers have filed suits alleging that non-transparent packaging - involving everything from household cleaning and personal care products to food and pharmaceuticals - consists of extra space that serves no functional purpose and otherwise deceives purchasers into believing that they are buying more than what is actually in the container. Plaintiffs often file suit relying on state unfair business practice statutes and common law claims, seeking injunctive relief and monetary damages, as well as class certification.

For defendant manufacturers, there are a number of defenses that have been successfully raised at the motion to dismiss stage; for example, plaintiffs' counsel have generally had trouble adequately pleading causes of action under the standards set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). See, e.g., Bautista v. Cytosport, Inc., Case No. 15-cv-9081 (S.D.N.Y. Dec. 12, 2016). But other defenses proffered during Fed. R. Civ. P. 12(b) proceedings have received mixed reviews from the courts, including the argument that, as a matter of law, a reasonable consumer cannot be deceived by purportedly non-functional slack-fill where the label expressly discloses the amount of contents, whether by net weight or the number of servings or product units. A recent decision issued by the United States District Court for the Southern District of New York illustrates the foregoing points.

In Izquierdo v. Mondelez, Case No. 16-cv-04697 (S.D.N.Y.), Plaintiff Jose Izquierdo filed a putative class action against various Mondelez entities claiming that the company marketed and sold misbranded Sour Patch Watermelon candy because the packaging contained non-functional slack-fill. The candy was contained in a sealed plastic bag which was then sold in a thin, non-transparent cardboard box. Plaintiff alleged that he bought the item at a movie theater and that the size of the box misled him to believe that it contained more candy than it actually held.  While the box contained 28 pieces of candy, Plaintiff argued that it could hold up to 50 pieces, thus allegedly leaving 44 percent of the box empty and serving no other purpose but to deceive consumers. Plaintiff maintained that he was misled despite the fact that the box was clearly labeled with the net weight and number of pieces.

Plaintiff's suit requested certification of a nationwide class based on various state and common law claims. Of particular interest were Plaintiff's demands for injunctive relief and money damages under New York's General Business Law § 349 ("GBL"), which makes it unlawful to engage in any "[d]eceptive acts or practices in the conduct of any business, trade or commerce." Plaintiff maintained that Mondelez's slack-fill violations were based on a New York misbranding law, which provides that "[f]ood shall be deemed to be misbranded . . . [i]f its container is so made, formed, colored or filled as to be misleading."  N.Y. Agric. & Mkts. Law § 201-4.

In its motion to dismiss, Mondelez countered that a reasonable consumer would not be misled by the product's packaging. Under New York's GBL, a plaintiff must demonstrate, among other things, that the challenged conduct was misleading in a material way. Because the packaging clearly stated the net weight and number of pieces contained in the box, Plaintiff knew exactly what he was buying, regardless of any purportedly non-functional slack-fill. The company cited several recent decisions from both New York and California granting motions to dismiss slack-fill claims where courts found that a reasonable consumer would not be deceived as to the amount of contents based on the size of the packaging given that the labels themselves listed the net weight and/or number of product units. See, e.g., Fermin v. Pfizer Inc., Case No. 15-cv-2133 (E.D.N.Y. Oct. 18, 2016); Bush v. Mondelez Int'l, Inc., Case No. 16-cv-02460 (N.D. Cal. Oct. 7, 2016); Ebner v. Fresh Inc., Case No. 13-00477 (C.D. Cal. Sept. 11, 2013).

The district court granted Mondelez's motion and dismissed the case, but not on grounds of Mondelez's labeling defense. The court held that an obligation to label a product accurately and to package products in a non-misleading way are "independent of one another." Looking to federal law for guidance, the court noted that the U.S. Food and Drug Administration ("FDA"), in adopting a regulation prohibiting non-functional slack-fill as misleading, stated that "[t]o rule that an accurate net weight statement protects against misleading fill would render the prohibition against misleading fill. . . redundant." 58 Fed. Reg. 64123, 64129 (Dec. 6, 1993); see also 21 C.F.R. § 100.100. The court found that the other decisions cited by Mondelez were not controlling and that it was "unwilling" to establish precedent in this case whereby "food packaging is incapable of being materially misleading if it displays the net weight and lists the number of pieces inside of the package."

As noted, the court went on to grant Mondelez's motion to dismiss on other grounds - e.g., lack of standing and insufficient pleading regarding the alleged injury under the GBL; the absence of any "special relationship" between Plaintiff and the company needed to support a negligent misrepresentation claim; and insufficient pleading under Fed. R. Civ. P. 9(b) as required for Plaintiff's common law fraud cause of action. The takeaway here is that manufacturers should not assume that simply disclosing on a label the amount of product contained in a package will result in the quick dismissal of a slack-fill suit. Rather, consumer perception may be viewed as a fact-intensive inquiry requiring, at a minimum, further discovery and summary judgment proceedings. Nevertheless, manufacturers should seriously consider vigorous defenses against these claims given the favorable decisions to date. 

© 2020 Keller and Heckman LLPNational Law Review, Volume VII, Number 5


About this Author

Douglas Behr, white collar criminal defense lawyer, Keller and Heckman, D.C. law
Senior Counsel

Douglas Behr joined Keller and Heckman in 1994. He practices civil litigation and white collar criminal defense. He handles matters regulated by the Drug Enforcement Administration.

Mr. Behr represents business, trade associations, and individuals before federal and state trial and appellate courts, regulatory bodies, and licensing forums with a concentration on Lanham Act false advertising, contract disputes, white collar crime defense, product liability, and trade regulation controversies. He also advises members of the business community on...

Arthur S. Garrett III, Keller Heckman, National Litigation Attorney, Insurance Coverage Lawyer,
Partner and General Counsel

Arthur Garrett joined Keller and Heckman in 1990. Mr. Garrett is co-chair of Keller and Heckman's national litigation practice, along with Robert S. Niemann. He also serves as the Firm's General Counsel.

Mr. Garrett's litigation practice focuses on product liability, with an emphasis on defending manufacturers of food, chemicals and pharmaceuticals. His trial experience has taken him all over the United States to try cases in state and federal courts and mediate/arbitrate disputes on behalf of corporations and trade associations. Mr. Garrett was recently trial counsel in a breach of contract/indemnity action that was selected as a Top 10 Defense verdict in the State of California. 

Eric Gotting, Keller Heckman, ligation attorney, appeals lawyer, personal injury

Eric Gotting joined Keller and Heckman in 2011. He serves as a partner in the firm's litigation and environmental practice groups specializing in complex civil and appellate matters, with a focus on toxic tort, environmental, and corporate litigation.

Litigation and Environmental Experience

Mr. Gotting has handled cases across the country, having tried matters to verdict and argued appeals before federal and state appellate courts. His experience includes class actions, mass tort litigation, and...

Robert S. Niemann, Trial Lawyer, Complex Business Attorney, Keller Heckman Law Firm

Robert Niemann is a trial lawyer in the litigation department concentrating his practice in the areas of complex business and commercial litigation, trade secrets, restrictive covenants, unfair business practices, products liability, and environmental toxic torts. Mr. Niemann is co-chair of Keller and Heckman's national litigation practice, along with Arthur S. Garrett III. He is also the co-chair of the Food Law Committee of the Litigation Section of the California State Bar Association, along with Christopher Van Gundy.

Mr. Niemann has...

Manesh K. Rath, Keller Heckman, Occupational Safety lawyer, Associations Attorney

Manesh Rath is a trial and appellate attorney with experience in general commercial litigation, food litigation, wage and hour and class action litigation, occupational safety and health law, association law, accessibility, and labor law.

Mr. Rath has been the lead amicus counsel on several cases before the U.S. Supreme Court, including Staub v. Proctor Hospital and Vance v. Ball State University.

Mr. Rath is a co-author of three books in the fields of OSHA law, wage and hour law, and labor and...