Slack fill litigation has been a significant trend within the food and beverage industry over the past several years. Approximately 300 slack fill cases were filed between 2016 and 2017. The cases have been filed principally in California and New York, but due to favorable consumer protection statutes, Missouri has recently become a hotbed of slack fill activity. While the proliferation of slack fill claims may concern food and beverage manufacturers, recent legal developments indicate that the viability of these claims may be short lived.

Claims that consumers have been deceived into purchasing a package that has too much air, or slack fill, have faced heavy criticism in both the court of law and the court of public opinion. The Southern District of New York, in Alce v. Wise Foods, No. 17-cv-02402 (S.D.N.Y. March 27, 2018), recently dismissed a claim that Wise Foods was under-filling its potato chip bags. In doing so, the court highlighted a fundamental problem plaintiffs face at the pleading stage: How does a consumer plausibly plead that a package contains nonfunctional slack fill? Aside from the technical inability to assert a plausible claim, courts have lambasted these claims as unable to “pass the proverbial laugh test.” Lobbyists, pro-business organizations, and lawmakers in Missouri have also taken notice of the spate of slack fill claims filed in the state and have mobilized around tort reform efforts that would preclude the filing of such nuisance suits.

Slack Fill Regulations and Past Precedent

Nearly 30 years ago, Congress passed the Nutrition Labeling and Education Act (NLEA), making it unlawful for a food or beverage manufacturer to place food in containers “so made, formed, or filled as to be misleading.” 21 U.S.C. §343(d). Congress delegated NLEA enforcement authority to the Food and Drug Administration (FDA), which regulates the misbranding of products. Per 21 C.F.R. §100.10, a container is unlawfully misleading if it contains “nonfunctional slack fill.” The regulation defines slack fill as “the difference between the actual capacity of the container and the volume of the product contained therein.”

The FDA recognizes that some slack fill is necessary and functional in packaging products. For this reason, the regulation deems slack fill nonfunctional only if it does not fall into one of six safe harbor provisions: (1) it protects package’s content; (2) machines cannot close the package without that empty space; (3) the empty space results from the product settling during shipment; (4) the package performs a specific function that is communicated to the consumers; (5) the container is reusable, part of the food’s presentation, and has its own value, such as a gift container designed to be used after consumption; or (6) the manufacturer cannot provide more product or make the package smaller for other legitimate reasons, like accommodating necessary food labels or discouraging theft. 21 CFR §100.100(a)(1)-(6). If none of the safe harbor provisions apply, then the FDA considers the slack fill nonfunctional, and therefore misleading to consumers.

Because FDA regulations do not provide consumers with a private right of action, plaintiffs have relied on state consumer protection statutes. Many states have some form of a statute that prohibits “deceptive acts or practices in the conduct of any business, trade or commerce …” See N.Y. Gen. Bus. Law §349. Typically, these class action complaints allege that a class of consumers purchased a product expecting to receive more than was contained in the package, but because the package contained nonfunctional slack fill the consumers did not receive the benefit of the bargain for that purchase. Such deception, plaintiffs allege, is a deceptive act or practice in violation of state consumer protection statutes.

Many courts have dismissed these claims at the pleading stage, highlighting the difficulty in plausibly alleging that manufacturers violated FDA regulations. Plaintiffs have struggled to plead a product contained nonfunctional slack fill without relying on conclusory allegations prohibited by the Iqbal and Twombly pleading standards. For example, in Bautista v. Cytosport, 223 F. Supp. 3d 182 (S.D.N.Y. 2016), the plaintiffs alleged that the defendant violated New York consumer protection laws because the containers had “nonfunctional slack fill.” The court held that the plaintiff needed more than conclusory allegations; they must allege specific facts demonstrating the nonfunctional nature of the slack fill. Id. at 5. In dicta, the Bautista court opined that plaintiffs could potentially overcome the plausibility pleading obstacle by consulting experts or comparing similar products. Id. at 191.

SDNY Rejects New Efforts to Plausibly Plead Slack Fill Claims

The pleading solution proffered in Bautista was put to the test this year in Alce v. Wise Foods.

Relying on one sentence in Bautista, the plaintiffs in Alce attempted to establish non-functionality by comparing Wise’s bags to the bags of other competitors. Alce, Op. at 8. They claimed that because similarly sized or smaller bags of chips contained less slack fill than Wise’s products, the difference in slack fill must be nonfunctional. Id.

In response to plaintiffs’ comparator arguments, the court found that while some comparisons may be helpful, the plaintiffs still must demonstrate that any comparison is tied to other non-conclusory facts. Plaintiffs failed to do so because the comparisons relied upon by plaintiffs were not sufficiently similar to the allegedly under-filled Wise products; “the proportions and volumes of the comparator bags are different; the products are manufactured by different corporations; the chips have different shapes (rectangular versus round); the surfaces are different (ridges versus flat); and the ingredients are different (corn versus potato). Id. at 24. Perhaps even more striking about the Alce decision is the holding that, as a matter of law, no reasonable consumer would be deceived by slack fill, because the weight of the chips was prominently displayed on the package and consumers have come to expect a certain amount of slack fill. Id. at 30.

Missouri May Tighten the Slack in Consumer Protection Statutes

As if having claims dismissed in a court of law is not enough of a blow, claims like those in Alce, and the attorneys who brought them, have been roasted in the court of public opinion. See, e.g., Mark Joseph Stern, “Is that Empty Air in Your Chip Bag a Scam? Maybe, but Not in Court,” Slate Magazine (April 16, 2018). Many believe the claims are frivolous and designed by unscrupulous plaintiffs’ attorneys who are looking to hold food manufacturers at ransom for a quick settlement payment.

Missouri has become a haven for slack fill plaintiffs, due in large part to the extraordinarily low threshold for proving a consumer relied on an alleged misrepresentation under Missouri’s Merchandising Practice Act (MMPA). Pro-business organizations in Missouri have heavily criticized the increase of slack fill claims. The Missouri Chamber of Commerce and Industry, in particular, has raised concerns that the flurry of slack fill cases represent an expanding threat to companies that do or may seek to do business in Missouri. Press Release, “Slack-Fill Cases on the Rise” (Oct. 26, 2017). The Chamber has spoken out against slack-fill litigation, describing the claims as “tenuous,” “meritless,” and used “to line the pockets of trial attorneys.” Id.; see also Press Release, “Repairing Missouri’s Broken Consumer Protection Law” (Feb. 1, 2018).

In response to growing ire from businesses and lobbyists, Sen. Caleb Rowden is pushing to reform Missouri’s MMPA, severely undermining the viability of slack fill claims in Missouri. According to Sen. Rowden, SB 832 “lays the groundwork for important reforms that … will stabilize our litigation environment, keeping any number of channels and avenues for people with legitimate claims to have their day in court, while telling ill-motived plaintiff’s attorneys that the game is over and Missouri will no longer be party to these dangerous schemes.” Id.

The bill is still in its infancy, and whether it will pass, and in what form, remains to be seen. However, all evidence indicates that slack fill claims, and the attorneys who bring them, will face heavy scrutiny by the business community and lawmakers in Missouri. To the extent these claims get more traction, increased efforts to reform Missouri’s MMPA.

What’s Next?

The lack of uniformity among courts on how to address pleading slack fill claims likely means plaintiffs will continue to file them (particularly when the suits are designed for quick settlement for nuisance value). The question then becomes whether this will continue to be a viable strategy, given the increasingly strict standards for plausibly pleading a nonfunctional slack fill claim and the increased denunciation of such claims by the media, business lobbyists, lawmakers, and even some courts. Crafty plaintiffs’ attorneys have tested numerous theories on how to plausibly allege that a package contains nonfunctional slack fill. However, at what point will the legal and political obstacles prove insurmountable? It may be sooner than you think.

Meghana Shah is a partner, and Brittany Cambre and Amber Unwala are associates, at Eversheds Sutherland.