Food litigation 101: Non-functional slack fill... are you up to speed?

A slack fill case vs Mondelez over alleged slack fill in Sour Patch candy boxes was thrown out in late 2016

Does the empty space in your food package serve a useful purpose? If not, you could be at the receiving end of a lawsuit over what is known in the trade as 'non functional slack fill.'

Despite mixed results in the courts, 14 slack fill lawsuits were filed against food and beverage manufacturers in the first seven months of 2017, compared with 37 in 2016 (full year) and 30 in 2015, according to law firm Perkins Coie, suggesting plaintiff’s attorneys still see this as fertile ground for litigation.

So what does the law say?

The code of federal regulations (see box below) clearly spells out when slack fill - empty space in a package - is warranted: to protect fragile contents, or if contents settle during transit, for example.

But there are still sufficient shades of gray surrounding just how much empty space is OK, or how clearly the reason for the slack fill has been communicated to the consumer, to make these cases worth pursuing for the plaintiff’s bar, say legal experts.

Are slack fill cases making headway?

As for the courts, they have tossed out some high profile cases in recent months, with one judge arguing that a case vs Pfizer* did not even “pass the proverbial laugh test,” given that the number of tablets in the container at issue was clearly stated on pack.

Another case vs Muscle Milk maker CytoSport** was also thrown out on the grounds that the complaint failed to plausibly allege that the slack-fill was non functional, while a case vs Mondelez International*** over Sour Patch candy boxes was also given short shift by the judge.

In general, said Breena Roos, senior counsel in the commercial litigation practice at Perkins Coie during an August 2 food litigation webinar hosted by her law firm, “Defendants have been bringing motions saying that plaintiffs need to allege with some specificity why they believe the slack fill is non-functional or otherwise there’s no bar to entry and every product with any kind of slack fill could be brought into litigation."

A motion to dismiss is best suited to resolve procedural defects in a plaintiff’s pleading, not to resolve disputed factual issues

However, several slack fill cases have proceeded beyond the motion to dismiss phase, with judges ruling that the exact amount of slack fill that might be reasonable in the packages at issue is a question inappropriate to resolve at such an early stage of litigation.

In a recent order in a slack fill case**** over Mike & Ike candy, for example, judge Nanette Laughrey asserted that “the court cannot conclude as a matter of law and at this stage of the litigation that the packaging is not misleading,” even though brand owner Just Born stated the number of pieces of candy per serving and the servings per box.

According to the plaintiff, the boxes of Mike and Ike candies and Hot Tamales at issue contained 34% and 35% slack fill respectively – which the lawsuit alleged were higher than in comparable products. Just Born, however, said the space was needed for enabling consumers to rattle the contents and open the pack (by pressing their thumb into the opening).

Asked whether the judge’s decision on Mike & Ike – along with similar judgements vs Ferrara Candy Co***** - would embolden the plaintiff’s bar, William C. Acevedo, partner at law firm Wendel, Rosen, Black & Dean LLP, told FoodNavigator-USA, that we shouldn’t read too much into this.

He explained: “I do not find this ruling uncommon. A motion to dismiss is best suited to resolve procedural defects in a plaintiff’s pleading; it is not well suited to resolve disputed factual issues.

“The court is essentially finding that the plaintiff has made plausible claims that justify plaintiff bringing the matter before the court for resolution.”

According to the code of federal regulations, ‘nonfunctional slack-fill,’ or empty space inside a package that isn’t there for a good reason, is misleading. Good reasons for slack fill include:

  • Protecting the contents;
  • Requirements of machines used for enclosing the contents in the package;
  • Product settling during shipping and handling;
  • The need for the package to perform a specific function (eg to play a role in the preparation or consumption of a food), where such function is inherent to the nature of the food and is clearly communicated;
  • If the package is re-usable and high value – eg. a commemorative or promotional package;
  • If a minimum pack size is necessary to accommodate required food labeling, discourage pilfering, facilitate handling, or accommodate tamper-resistant devices.
  • If the container has a measuring spoon or cup, if it contains liquid products that have cooled after being packaged hot, if you need the ability to reclose the package, or if you need to accommodate devices that reduce the risk of microbiological and filth contamination.

Assembly line complaints?

So who is filing all the slack fill lawsuits?

A relatively small number of law firms including Clarkson Law Firm and Kazerouni Law Group in California, Steelman Gaunt & Horsefield in Missouri and Lee Litigation Group in New York, according to the Institute for Legal Reform, which penned a recent report on food litigation trends.

“On a single day, October 25, 2016, Steelman, Gaunt & Horsefield filed nine class action lawsuits alleging that boxes of various brands of fruit snacks, Reese’s Pieces, Skittles, Junior Mints, Bit-O-Honey candy, and pancake and waffle mixes were under-filled. Although brought against nine different businesses in 'relentlessly pursuing justice' for consumers, a substantial portion of each complaint is identical."

Indeed, Lee Litigation Group has filed so many slack fill complaints, observed Mondelez International in court papers filed in August 2016, **** that you could see clear evidence of its “cut and paste” approach: "The assembly-line nature of these lawsuits is evident by references to ‘chewing gum’ and ‘sugar-free gum,’ which are obviously remnants of the other similar lawsuits filed by Plaintiff’s counsel.”

Private settlements

So what's the endgame for these cases, given that none we're aware of has gone to trial? Judging by the docket activity, it appears that many cases are being settled privately, Amanda Groves, co-chair of Winston Strawn’s class actions practice, told FoodNavigator-USA.

“Dismissals with prejudice after an unsuccessful motion to dismiss are normally a pretty good indicator that there was a private settlement. If a plaintiff’s lawyer can file a lawsuit and not have to do too much work, it’s worth it.”

How to avoid becoming a target of a slack fill lawsuit

There are concrete strategies companies can employ to avoid being targeted in slack fill cases, including stating the number of items in their packs, including clear sections of packaging, adding fill lines, including statements about contents settling in transit and explaining why empty in a container might serve a purpose.

Groves, for example, is a “big fan of transparent containers if it makes sense for your product... If the consumer can see how much is in the package, then you don’t have an issue with slack fill.”

November 2016 guidance issued by the American Herbal Products Association (AHPA) also provides practical advice, she said.

Tell consumers how many pieces, pills or cookies are in the box

As a starting point, said William C. Acevedo, “Periodically do an internal review of your packaging with appropriate legal guidance and ask yourself, is there a good reason why you can’t put more product in your packaging? Can modifications be made? Do you have a new packaging machine enabling you to pack the products differently?”

Then consider how clear your communications to consumers really are about what they’re getting, he said.

For example, just stating the net weight of the contents on pack doesn’t necessarily tell the consumer anything, whereas telling them how many pills or cookies are in the box is more meaningful: “Can a reasonable consumer understand how much product is in the package? If your package contains 10 cookies, why not say so?  

“Maybe the space is there because if you tear open a box that’s filled to the rim, the candies inside will fly all over the room, so space is needed for consumers to ‘pour and enjoy the product’ for example. As long as you’re being up front with your customers, it’s very hard for a plaintiff’s attorney to claim people are being misled.”

A critical time to examine potential slack-fill issues is anytime changes are made to the contents of food, either making the net contents smaller due to cost constraints or if offering bonus free product. In the former case, anytime less product is being sold, many times (though not always) the product packaging should be downsized as well.

“If you are offering bonus product for a limited time, if the additional product can fit in the same container with no modifications, it is a good time to look at the size of the regular packaging and whether it meets the functional/nonfunctional slack-fill test.”

Stephen Freeland and Amy Ralph Mudge, Venable LLP, writing in Lexology

After a while you get to know how much it might cost to settle at any given point

As there are only a few firms filing slack fill cases, you get to know how things might play out, meanwhile, he said. “After a while you get to know how much it might cost to settle at any given point vs how much it might cost to continue to fight, and you do the calculation.

“Smaller firms often settle pretty early, maybe they will answer the complaint but then they will try and continue with hearings and things while the parties work on a settlement. But maybe a larger firm may have to file a motion to dismiss and see what happens, and if this doesn’t severely limit the plaintiff’s claims or at least give you a better bargaining position, then yes, you’ll probably try and settle after that.”

But it’s “not just a matter of making the immediate problem go away [for example by paying off a lawyer that’s sent you a demand letter before a complaint is even formally filed],” he added.

You have to be strategic and engage in a settlement that offers protection on a go-forward basis. You don’t want to settle in state x and all of a sudden get the same exact lawsuit from a different plaintiff’s attorney in state Y.”

While there is no private right of action under the FDCA or FDA regulations for misleading, nonfunctional slack-fill claims, private plaintiffs typically sue under state consumer protection laws, which mirror state law.

* Fermin et al v. Pfizer Inc. 1:15-cv-02133 Eastern District of New York

** Bautista v. CytoSport, Inc. 7:15-cv-09081 Southern District of New York

*** Izquierdo v Mondelez International 1:16-cv-04697  Southern District of New York

**** White v Just Born Inc 2:17-cv-04025 Western District of Missouri

*****Iglesias v Ferrara Candy Co 3:17-cv-00849 –Northern District of California

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