Slack-fill cases on the rise

justin arnold byline

An alarming trend in mass tort litigation is coming to light as tenuous cases known as “slack- fill” lawsuits are beginning to clog up time and resources in our judicial system.

Think of the bag of potato chips in your house or a box of candy you purchase at the movies. The “slack-fill” is the empty space or air that is included in the carton for spatial or packaging purposes.

While a slack-fill lawsuit can take a variety of forms, for the most part, a hungry trial attorney will seek out a consumer who purchased a food item in some type of bag or carton. The lawyer gathers additional clients who purchased the same food item. That lawyer then files a lawsuit seeking class-action certification, alleging that the packaging of a particular food item did not contain enough actual food inside and that all of these consumers were somehow damaged by the extra space in the container.

The second cousins to these types of lawsuits are cases such as the peanut lawsuit brought next door in St. Clair County, Illinois, alleging a can of mixed nuts contained too many peanuts.

Proponents of these lawsuits often say they are somehow serving the public good by going after companies that “mislead” consumers. But others, who see this litigation as a cash grab by greedy trial lawyers, ask whether there is any actual damage being done in these cases.

One example is a case brought against Pfizer under the Federal Food, Drug, and Cosmetic Act as well as consumer laws in Florida, New York and California. In that case, the plaintiffs alleged they were tricked into purchasing Advil medicine because of the packaging size, which they argue was inflated by slack-fill. However, the number of pills contained in the packages the plaintiffs purchased was clearly indicated on the box. While the plaintiffs alleged that they relied on the packaging size in purchasing the product, ultimately the court was not persuaded. The judge for the United States District Court Eastern District of New York wrote:

“This Court finds, as a matter of law, that it is not probable or even possible that Pfizer’s packaging could have misled a reasonable consumer. Plaintiffs seek to be protected under packaging laws but to dispense with reading the package. The suggestion that such laws should cover their failure to read an unambiguous tablet-count does not pass the proverbial laugh test. In sum, Plaintiffs’ claims amount to ‘non-actionable puffery,’ and are unreasonable as a matter of law.” Emphasis added.

Across the country, slack-fill cases are being filed at an increasing rate. According to the U.S. Chamber of Commerce Institute for Legal Reform, there were only 10 slack-fill cases filed in 2013 and 2014. During 2015 and 2016, plaintiffs’ lawyers filed over 65 new slack- fill class action lawsuits that targeted both food and beverages. However, plaintiffs’ lawyers have not been successful in recovering from a majority of these cases, as most courts have found that there is no injury. And as Judge Sterling Johnson noted in the Pfizer case, these cases do not pass the laugh test.

Missouri remains a battleground for these types of claims. Under the Missouri Merchandising Practices Act (MMPA), which is the vehicle the slack-fill cases are being filed under, plaintiffs in Missouri do not even have to show that they relied on the alleged misrepresentation that caused them damage. The Missouri Supreme Court also recently declined to issue a ruling on whether “puffery” is a theory under which plaintiffs could collect. Taken together, these factors reveal a serious threat that cases similar to the Advil case could lead to damaging jury awards against businesses in Missouri.

In yet another example, a case filed in St. Louis over slack-fill in Red Hots packaging will remain in St. Louis City. An appeals court ruled recently that plaintiffs’ lawyers can determine the value of the cases in their pleadings in order to avoid jurisdictional amount requirements that would kick the case to federal court.

One final case from earlier this year punctuates these issues. A federal court in Missouri denied a motion by Hershey to dismiss a case brought against it that alleged slack-fill in Reese’s Pieces and Whoppers containers despite the fact that the packages showed the amount in each serving, the number of servings, and the weights of the content. Ultimately, Hershey succeeded on summary judgment motions, as it was discovered that the plaintiff had purchased over 600 boxes of these candies over the last decade and did so with no apparent concern over the amount of slack-fill. Unfortunately, Hershey and other businesses continue to be subject to expensive litigation costs as these cases slowly progress through the court system.

Missouri made great strides in the last year by attacking holes in our civil justice system. However, plaintiffs’ lawyers are, if nothing else, creative, and the increase of these slack-fill cases shows an expanding threat to those doing business in Missouri. We might all wish there was just one more chip in the bag or one more piece of candy from the box, but at some point we have to ask ourselves whether these cases really belong in our judicial system.

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