Most food and beverage companies are well aware of the rising tide in “slack-fill” class action litigation. Slack fill refers to the difference between the actual capacity of a container and the volume of product contained therein—think of the empty space in a bag of potato chips or a box of candy.
A claim generally goes something like this: A consumer (or, more realistically, a member of the plaintiffs’ bar) identifies a product appearing to have slack fill in its packaging. A prospective plaintiff is next identified, and a putative class action is filed, usually under state consumer protection statutes, alleging that the slack-fill packaging is misleading because it deceives consumers into believing that they are getting more product than they actually paid for.
At this point, a company’s options are generally limited to defending the lawsuit or settling the claim—regardless of the merits—to avoid the uncertainties and expenses of litigation. Oftentimes, the decision comes down to the company’s financial well-being, the functionality or nonfunctionality of the slack fill in question, the availability of insurance, public relations considerations, and the realities of the environment in which the company operates.