Mike Zogby, products liability and mass tort partner in Florham Park, and Katherine McBeth, products liability and mass tort associate in Philadelphia, wrote an article for the American Bar Association’s Class Actions & Derivative Suits Committee titled “When Would a Reasonable Consumer Be Misled by the Product’s Packaging in Slack-Fill Lawsuits?” The article discusses class action lawsuits against food and nonfood manufacturers, including pharmaceutical and consumer product companies, that allege slack-fill, defined as “the difference between the actual capacity of a container and the volume of product contained therein,” that led consumers to believe they were buying more product than they actually bought.
Mike and Katherine consider federal slack-fill regulations, state consumer protection laws, and how courts have ruled (and, in some cases, refused to rule) on this issue. They explain that the relevant federal regulation does not provide for a private right of action, leading plaintiffs to turn to states’ consumer protection laws. State courts must then determine whether the empty space is nonfunctional, and therefore misleading and misbranded. However, state courts are split on the issues of when and how to determine what would mislead a reasonable consumer.
Mike and Katherine explain that while courts throughout the United States continue to address the slack fill issues relating to whether product packaging would be misleading, manufacturers continue to face a risk that the products they market will not meet a courts’ expectations.