Are Manufacturers Slacking Off? A Closer Look at Slack-Fill Lawsuits

January 13, 2017 Update: Add Swedish Fish to the list of allegedly slack-filled products.

I’m sure you’ve seen the lawsuits about companies putting less and less product in bigger and bigger containers. You’ve probably even had a bit of a chuckle reading about people wanting to make sure their Starbucks cups and tubes of mini M&M’s are filled properly. It may seem silly, but we’re going to take a closer look at these “slack-fill” lawsuits – and whether or not they have merit.

What Is Slack-Fill?

Before we get too far into this, you should probably know what exactly slack-fill is. Slack-fill refers to the empty space manufacturers put in their product packaging. The lawsuits aren’t concerned with all slack-fill though, they tend to focus on what we call “non-functional slack-fill.” Unlike functional slack-fill, using nonfunctional slack-fill has no purpose other than to mislead consumers about the amount of product actually present in the container, according to the suits.

Example time. Let’s think about a bag of chips. Potato, corn, tortilla, take your pick. You’ve probably noticed that when you open a bag of chips, a notable amount of the bag is filled with air. Despite the number of times I’ve complained about being cheated out of my delicious Sun Chips, this is considered “functional” slack-fill. The empty space serves a purpose. It keeps the chips from turning into a big bag of crumbs during transportation.

On the other hand, when a tube of M&M’s Minis happens to be 22% empty (this is an actual lawsuit) before you get to any of the chocolate-y goodness, it can be considered misleading. The space in the M&M’s tube doesn’t serve the same purpose as it does in a bag of chips. You can shake one of those tubes for hours and, while it can make for a decent makeshift maraca, none of the candy-coated chocolates are going to be any worse off.

What Does The Law Say?

That’s right. There are actual laws about this – and they date back to 1906 when the Federal Food and Drug Act defined the term “misbranding.” The Act said that a product’s package must be representative of what’s actually inside. Slack-fill was further solidified as a prohibited type of misbranding – and a valid legal term – when the Food, Drug and Cosmetics Act was introduced in 1938. The FDCA said that companies aren’t allowed to use containers that are “made, formed or filled in a manner so as to be deceptive concerning how much the package contains.” Basically, the package has to present the product in such a way that it doesn’t make people buy it simply because they think they are getting more bang for their buck.

So, it may seem silly, but there are companies out there being accused of breaking federal laws with their use of nonfunctional slack-fill.

Slack-Fill Can Be Sneaky – But the Cases Aren’t Baseless

Even with laws against it, slack-fill can still be hard to nail down. There are strong arguments saying that if the packaging is transparent, slack-fill regulations don’t apply. It makes sense right? In these cases, the consumer can actually see what’s inside before he or she chooses to buy it.

But when the product isn’t in a clear container, slack-fill can be pretty difficult to spot. Take this lawsuit against McCormick for example. (I mentioned it once already when the lawsuit surfaced, citing an awesome NPR interview we came across.) The basis of the case lies in two seemingly identical tins of ground black pepper. Same size. Same shape. Same label. The difference? Only the little number in the bottom left corner – and the amount of pepper in the tin. McCormick was accused of taking an almost iconic container, filling it with less pepper and charging the same price. If you take a look at the NPR interview, you’ll see that the change isn’t something that the average consumer would notice at a glance – which is why it came across as a deceitful move on McCormick’s part.

Likewise, Starbucks was accused of intentionally standardizing measurements that wouldn’t fill coffee-lovers drinks to the brim, while the M&M’s complaint said Mars was using bigger, slack-filled packages to stand out from the competition. Do M&M’s even have competition anymore? Sixlets maybe?

Anyway…

Will These Lawsuits Be Successful?

Glad you asked. They may seem frivolous, but most slack-fill lawsuits have merit. Individual consumers may not stand to gain a big stack-o’-cash from one of these lawsuits – a settlement would probably only bring in a few dollars per person. But, if you think about a brand like Starbuck’s or McCormick taking a little off the top from every one of their millions of customers, it adds up. If one person gets cheated out of a few bucks by a major corporation, an individual lawsuit would cost them more than they could possibly imagine winning. So then what? Large Corporation A gets to continue taking from the consumer without the fear of consequences. When it comes down to it, class actions – when used as they were intended – are the only reasonable way to assure that we, as a people, are getting exactly what we pay for.