When Would a Reasonable Consumer Be Misled by the Product’s Packaging in Slack-Fill Lawsuits?

After opening food or nonfood product packaging, many consumers are left wondering: Shouldn’t there be more in there? Frustrated by the appearance of a product’s packaging compared with the quantity of the product contained within, plaintiffs have filed slack-fill class action lawsuits. Essentially, these lawsuits against food and nonfood manufacturers, including pharmaceutical and consumer product companies, allege that the products have empty space in the packaging that misled the plaintiffs into thinking they were buying more than they actually bought.

Over the past nine years, the number of food-related slack-fill federal class action lawsuits has increased from 20 in 2008 to more than 110 in 2015, in addition to the individual plaintiff slack-fill lawsuits filed during this period. See U.S. Chamber Inst. for Legal Reform, The Food Court: Trends in Food and Beverage Class Action Litigation 5 (Feb. 2017). Because federal regulation prohibiting nonfunctional slack fill does not provide for a private right of action, plaintiffs have turned to states’ consumer protection laws. To succeed on this basis, plaintiffs must often prove that a reasonable consumer would be misled by the product’s packaging.

This article analyzes how courts address the issue of whether a reasonable consumer would be misled by a product’s packaging. First, the article discusses the federal slack-fill regulation and how it relates to the state consumer protection laws that plaintiffs rely on in class actions. Next, it looks at when courts are willing to address this issue. Finally, the article examines what courts have concluded would and would not be misleading to a reasonable consumer, as well as instances where courts have refused to rule on the issue.

Federal Slack-Fill Regulations and States’ Consumer Protection Laws
Slack fill is defined as “the difference between the actual capacity of a container and the volume of product contained therein.” 21 C.F.R. § 100.100(a). Essentially, it is the empty space in a container; that is, empty space in a potato chip bag, empty space in a bottle of medicine, or empty space in a box of candy. However, the regulatory definition of “slack fill” is not inherently negative. Sometimes less is more; empty space in packaging serves a variety of purposes such as protecting the package’s contents or enabling the package to perform as intended. See, e.g., 21 C.F.R. § 100.100. Yet, if the empty space is considered nonfunctional (meaning it does not serve one of the purposes within the statute), the product is considered misleading and misbranded. Id.

Because the federal regulation does not provide for a private right of action, plaintiffs turn to states’ consumer protection laws that mirror the federal regulation. For example, plaintiffs in New York have relied on the New York Agriculture and Markets Law and the New York General Business Law. See Izquierdo v. Mondelez Int’l, Inc., 2016 U.S. Dist. LEXIS 149795, at *7–9 (S.D.N.Y. Oct. 26, 2016). Section 201(4) of the New York Agriculture and Markets Law states that “[f]ood shall be deemed to be misbranded . . . if its container is so made, formed, colored or filled as to be misleading.” N.Y. Agric. & Mkts. Law § 201(4). A private right of action for misbranded food is then derived from section 349 of the New York General Business Law. Section 349 prohibits “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in” New York. Section 349 has been interpreted as prohibiting nonfunctional slack fill. Izquierdo, 2016 U.S. Dist. LEXIS 149795, at *8. Although section 349 does not contain safe harbors for functional slack fill, section 349(d) says if slack fill abides by the federal requirement, then it satisfies the state law. N.Y. Gen. Bus. Law § 349(d). To prove that the packaging was in fact misleading, one of the elements plaintiffs must show is that a reasonable consumer would be misled by a product’s packaging. See Izquierdo, 2016 U.S. Dist. LEXIS 149795, at *14.

When Are Courts Willing to Address the Issue?
It is undisputed that a court may make a determination as to whether a reasonable consumer would be misled by a product’s packaging. See Fermin v. Pfizer Inc., 215 F. Supp. 3d 209, 211 (E.D.N.Y. Oct. 14, 2016) (“It is well settled that a court may determine as a matter of law that an allegedly deceptive practice would not have misled a reasonable consumer.”). The issue is not whether a court can make this determination; rather, the issue is when a court should make this determination.

This issue has been resolved by some courts as early as the motion to dismiss stage. See, e.g., Martin v. Wrigley, 2017 U.S. Dist. LEXIS 175502, at *13–14 (W.D. Mo. Oct. 23, 2017) (“[A]lthough the question of whether packaging is misleading to the reasonable consumer is a question of fact that ordinarily is not appropriate for determination upon a motion to dismiss, dismissal of such claims is appropriate where the plaintiff fails to show the likelihood that a reasonable consumer would be deceived.”); Fermin, 215 F. Supp. 3d at 211. However, not all courts have made this determination at such an early stage. See, e.g., White v. Just Born, Inc., 2017 U.S. Dist. LEXIS 114305, at *20 (W.D. Mo. July 21, 2017) (“[C]ourts that have allowed slack-fill, consumer protection cases to proceed beyond the motion to dismiss stage tend to do so because reasonableness was at issue and could not be resolved short of summary judgment or trial.”); Izquierdo, 2016 U.S. Dist. LEXIS 149795, at *17 (“Whether a reasonable consumer would think to shake, squeeze, or manipulate the Candy box, and whether that reasonable consumer would actually be able to feel the existence of slack-fill, are questions of fact that are inappropriate for resolution at the motion to dismiss stage.”). Instead, some courts wait until the summary judgment stage, after there has been discovery. See, e.g., Strumlauf v. Starbucks Corp., 2018 U.S. Dist. LEXIS 2409, at *23 (N.D. Cal. Jan. 5, 2018). Regardless of when they address the issue, courts have provided detailed explanations of their rulings.

How Do Courts Address the Issue?
Just as courts are split on when the issue of whether a reasonable consumer would be misled by a product’s packaging should be addressed, they are also split on what would mislead a reasonable consumer. For example, would a reasonable consumer be misled by a product’s packaging even if the quantity of a product was displayed on the packaging? Some courts say yes; others say no.

A court in the Eastern District of New York certainly did not think so. In Fermin v. Pfizer Inc., the court granted the defendant’s motion to dismiss in a slack-fill case pertaining to an over-the-counter medication. 215 F. Supp. 3d at 210. The plaintiffs, who proposed a consumer class action, alleged that “they were tricked into purchasing the over-the-counter medicine Advil® due to the size of Advil’s packaging” in violation of New York, Florida, and California state consumer laws. Id. at 210. The court held that the plaintiffs’ claims were implausible as a matter of law and failed for lack of subject matter jurisdiction. Id. at 211–13.

First, under consumer protection laws, the plaintiffs needed to establish that the packaging “was likely to mislead [or deceive] a reasonable consumer acting reasonably under the circumstances.” Id. at 211. After considering the entire context of the packaging, the court found “that it is not probable or even possible that Pfizer’s packaging could have misled a reasonable consumer.” Id. at 212. The packages displayed a total pill count on each label, which the plaintiffs gave no basis for disregarding. Id. (“The suggestion that such laws should cover their failure to read an unambiguous tablet-count does not pass the proverbial laugh test.”). Moreover, “[i]t defies logic to accept that a reasonable consumer would not rely upon the stated pill count.” Id. Second, the plaintiffs were unable to satisfy the Class Action Fairness Act’s amount-in-controversy requirement. Id. at 212 (“Here, Plaintiffs received exactly what they paid for and suffered no loss.”).

Meanwhile, a Southern District of New York court was not equally convinced. In Izquierdo v. Mondelez International, Inc., a putative consumer class action related to candy packaging , the plaintiffs alleged that the defendants manufactured Sour Patch Watermelon candy with false and misleading labels in violation of section 349 of the New York General Business Law. 2016 U.S. Dist. LEXIS 149795, at *11. The plaintiffs alleged that the candy was sold in a “thin cardboard box that housed a sealed plastic bag” and contained a label with the net weight and nutritional facts. Id. at *2–3. Based on the net weight and nutritional facts, the box contained about 28 pieces of candy, yet had about 44 percent nonfunctional slack fill, “which serve[d] no other purpose but to mislead consumers.” Id. at *2–4.

The defendant unsuccessfully argued that a reasonable consumer would not be misled by the packaging. See id. at *16–17. The defendant claimed that the packaging was not misleading because it contained the net weight of the product and the number of pieces in the box. Id. at *15. But the court, unlike the court in Fermin, declined to adopt this viewpoint because “[l]egislative history and regulatory guidance suggest a contrary conclusion.” Id. at *16–17 (“[T]he FDA itself opined that ‘No rule that an accurate net weight statement protects against misleading fill would render the prohibition against misleading fill . . . redundant.’”). Alternatively, the defendant argued that the packaging “is not misleading because the consumer can plainly feel and hear the existence of empty space in the box upon reasonable inspection.” Id. at *17. However, the court determined that “[w]hether a reasonable consumer would think to shake, squeeze, or manipulate the Candy box, and whether the reasonable consumer would actually be able to feel the existence of slack-fill” were not appropriate determinations at this stage. Id. at *17. Nonetheless, the court granted the defendant’s motion to dismiss because the plaintiffs failed to allege an injury. Id. at *19.

Litigants in slack-fill class actions filed in different states should expect similarly mixed results. In the Western District of Missouri, the same court reached different holdings in two slack-fill cases. In White v. Just Born, Inc., a slack-fill class action, the court denied the defendant’s motion to dismiss concerning Mike & Ike and Hot Tamales candies. 2017 U.S. Dist. LEXIS 114305, at *1. There, the plaintiffs alleged that the defendant violated the Missouri Merchandising Practices Act (MMPA) by selling candy that was packaged in a misleading manner in that the candy was packaged in “opaque, cardboard containers” that displayed net weight and serving size. Id. at *1–2. Each package was about 35 percent empty, which the plaintiffs alleged had no other purpose but to mislead consumers into thinking they were “purchasing more [p]roduct than was actually received.” Id. at *2–3. The court denied the motion to dismiss because under the MMPA, which is construed broadly, it is not apparent that a reasonable consumer would not be misled by this packaging. Id. at *9. The court explained that the plaintiffs “ha[ve] alleged, at a minimum, that the packaging unfairly suggests the boxes contain more product than they actually do, or tends to or has the capacity to mislead consumers or to create a false impression.” Id. at *10. Consumers, who “tend to make their purchasing decision in 13 seconds,” are often attracted to larger packages. Id. Moreover, even though the box displayed net weight and serving size information, “[n]arrowly focusing on an aspect of the labeling does not serve the purpose of the MMPA.” Id. at *13.

While the court in White was unwilling to determine that a reasonable consumer would not be misled by the products’ packaging, the same court was willing to make that determination in a later case. In Martin v. Wrigley, the court that decided White granted the defendant’s motion to dismiss in a nonfunctional-slack-fill class action related to gum packaging. 2017 U.S. Dist. LEXIS 175502, at *1. Like their predecessors, the Martin plaintiffs alleged deceptive packaging in violation of the MMPA. Id. at *2. Because the packaging was opaque and included empty tabs, which gave the appearance of additional pieces of gum, the plaintiffs claimed the packaging was misleading. Id. at *1–2. However, the Martin court explained that the packaging is not misleading because “the empty tabs are visible from the outside of the package,” id. at *8, and “the package displays, in relatively large lettering and in more than one place, that it contains 18 pieces of gum,” id. at *9. The court distinguished this case from White, finding that the gum packaging was not actually opaque, as alleged, nor was it non-pliable. Id. at *12. In addition, the packaging at issue in Martin clearly stated that the package contained two packs with nine pieces of gum each, id. at *9, whereas the packaging in White required the consumer to calculate how many pieces of candy were in the package based on the net weight, serving size, and number of servings per container, id. at *9–10. A reasonable consumer could not be misled by the packaging because the defendant “made these facts patently obvious on the face (and back, and sides) of every package, through both plain and conspicuous language and through the thumb-size cut-out, and open side.” Id. at *12.

The courts’ different treatment offers guidance to slack-fill litigants in that the determination of whether a reasonable consumer would be misled by a product’s packaging is not as clear-cut as one might expect.

Conclusion
While some courts hold that a reasonable consumer’s expectation would not contradict the stated quantity amount on a product’s packaging, other courts are not prepared to draw that conclusion. Some courts are reluctant to hold reasonable consumers to this standard, especially if the quantity amount has to be determined by the consumer by calculating the net weight, serving size, and number of servings. Regardless, manufacturers and consumers should be forewarned. A stated quantity amount on a product’s packaging is not always treated as per se evidence that a reasonable consumer would not be misled by a product’s packaging. As courts continue to address this issue, manufacturers will attempt to produce and market products that meet the courts’ expectations. In the meantime, consumers are still left wondering: Is what I see what I will get?

Michael C. Zogby is a partner at Drinker Biddle & Reath LLP in Florham Park, New Jersey, and New York City, New York. Katherine McBeth is an associate in the firm’s Philadelphia, Pennsylvania, office.


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

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