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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.

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