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Slack-fill Litigation on the Rise

The recent filing of a proposed class action targeting Mondelez International, Inc. for the amount of empty space in its Sour Patch Watermelon candy boxes is the latest lawsuit targeting consumer goods manufacturers for "slack-fill" packaging. The case, which is pending in the Southern District of New York, is part of a rising tide against makers of everything from laundry detergent to pet food for allegedly misleading consumers about how much product is actually inside of a box, bag or bottle. 

The Food and Drug Administration (FDA), in regulations pursuant to the Food, Drug & Cosmetics Act (FDCA), defines slack-fill as the difference between the actual capacity of a container and volume of the product contained in the packaging/container. Slack-fill is then sub-divided into "non-functional slack-fill," which is generally defined as the empty space in a package that is filled to less than its capacity for reasons other than: 

1. Protection of the contents of the package; 

2. Requirements of machines used for enclosing the contents in such package; 

3. Unavoidable product settling during shipping and handling; 

4. Need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of food) inherent to the nature of the food and which is clearly communicated; 

5. Packaging that is a reusable container that is part of the presentation of the food and has significant value in proportion to the food or independent of its function vis-à-vis the food (e.g., gift containers promotional packaging); and, 

6. Inability to increase the level of fill or to reduce the size of the package (e.g., to provide for label placement, accommodate tamper-resistant devices, etc.). 

Litigation in this area is burgeoning, and is seen as a ripe area for continued litigation across the country. Class actions in both state and federal court allege not only violations of the FDCA, but also state law regimes, either codified (e.g., Sections 12601-12615.5 of the California Business and Professions Code) or common law (state consumer protection and merchandising practices laws). Consumer class actions routinely allege the presence of non-functional slack-fill sufficient to constitute misrepresentation to consumers. In the last several years, major companies including Mars, Inc. (packaging of M&M’s® Minis), and Unilever (AXE/Degree® deodorant) have been the subject of putative class actions, with varying success. Regardless of the merits of the claims, they require active litigation and the incurring of ancillary costs of defense. 

With the increasing frequency of slack-fill related filings, it is incumbent on all consumer good and food production companies to audit their product stock and their packaging. Companies should examine packaging to determine the accuracy of representations in labeling, evaluate and document production processes related to filling of packaging, and document when appropriate any determination for the need of functional slack-fill meeting any of the six criteria outlined above. Companies may also want to evaluate the utility of providing explanatory comments on packaging or modifying packaging to avoid slack-fill claims.

© Copyright 2020 Armstrong Teasdale LLP. All rights reserved National Law Review, Volume VI, Number 204



About this Author

Laura A. Bentele, Litigation Attorney, Armstrong Teasdale, Law firm

Laura Bentele is an associate attorney in the Litigation group practicing in the areas of complex commercial litigation and white collar criminal defense. To achieve optimal outcomes, Laura anticipates clients’ strategic and practical business considerations. Committed to effective case management, she is versed in all phases of discovery, trial preparation and negotiation of settlements with opposing counsel. Laura strives to maintain open avenues of communication to ensure that clients receive representation that meets their business needs.

Ryan Fournier, International Attorney, Armstrong Teasdale Law Firm

Ryan, a member of the firm’s International practice group, represents domestic and foreign companies of all sizes on a wide range of international law matters. These include: U.S. Customs and Border Protection laws and regulations; the Foreign Corrupt Practices Act; compliance reviews and audits; licensing and compliance matters involved in the export of U.S. products under the Export Administration Act and Regulations (EAA/EAR); the Arms Export Control Act and Regulations (AECA/ITAR); Foreign Assets Control Regulation; free trade agreements; sanctions programs; boycott and anti-boycott...

Scott Kozak, Agriculture, Food and Health and Securities Regulation, Armstrong

Scott Kozak is the founder and co-founder of two of the firm's practice groups:  Agriculture, Food and Health and Securities Regulation and Litigation. He is also a member of the firm’s Complex Commercial Litigation team. A skilled trial lawyer, he focuses on, securities, products liability, toxic tort, complex commercial and environmental litigation. 

Products Liability. Scott has handled a wide range of products liability cases and as a member of the Agriculture, Food and Health group, defends...