A proposed class action lawsuit filed in California this week claims the packaging of men and women’s Degree, Dove, and Axe deodorants is purposely designed to deceive consumers into thinking they’re getting more product than they actually are.
According to the suit, the solid stick style deodorant and antiperspirant products, made by defendant Unilever United States, Inc., contain too much “nonfunctional slack fill”—essentially unnecessary empty space inside the packaging that’s invisible from the outside.
The four plaintiffs claim they purposely chose the defendant’s products because the containers seemed bigger than competitors’ deodorants and were sold for a similar price. Because of the opaque packaging and “almost imperceptible” labeling of the products’ weight, the plaintiffs had no way of knowing they were actually buying less deodorant than the packages made it seem, the suit alleges. From the complaint:
This misleading packaging was an inducement for consumers to buy these Products as compared to competitor’s products, and in fact, consumers relied upon the size of the packaging as a gauge to how much product they were receiving. The misleading packaging did induce Plaintiffs and the putative class members to purchase the Products because they believed they were getting more product than was actually in the package.”
Nonfunctional Slack Fill: An Unlawful Trade Practice
The lawsuit argues that Degree, Dove, and Axe deodorants and antiperspirants contain as much as 40 percent nonfunctional slack fill—which the case claims amounts to an unlawful trade practice under California law given consumers are misled as to what they’re buying.
Nonfunctional slack fill, according to the case, is “the empty space in a package that is filled to less than its capacity” in a way considered to be misleading to consumers.
“For a seller to package goods in containers which unknown to the consumer are appreciably oversized, or in containers so shaped as to create the optical illusion of being larger than conventionally shaped containers of equal or greater capacity, is as much a deceptive practice, and an unfair method of competition, as if the seller was to make an explicit false statement of the quantity or dimension of his goods,” the complaint argues.
Though the opaque coloring of the defendants’ deodorant packages made it impossible for the plaintiffs to tell how much product was inside, they believed the packaging “was full of deodorant” and thus represented how much they were purchasing, according to the case.
In contrast, the plaintiffs observed that competitors’ products came in smaller packages with the same twist bottom delivery system but had less opaque packaging that allowed them to see that the containers were “completely full of product,” the suit explains. Because the defendant’s products were larger, the plaintiffs falsely concluded that they were getting more deodorant for a similar price, the case says, when in reality, they were buying empty space.
The Plaintiff’s Investigation
One of the plaintiffs in the suit says he discovered Unilever’s allegedly deceptive slack-filling practices by chance after purchasing the stick antiperspirant and deodorant “Degree For Men” for several years.
One day in 2017, the plaintiff was removing from his cabinet a brand new stick of Degree for Men (Everest) when sunlight shining on the product caused him to notice “an odd and off color” at the bottom of the package, the case says. Since the deodorant felt top-heavy, he investigated further and allegedly discovered “a significant amount of empty space” between the twisting device and the plunger. While the length of the packaging (not including the twisting mechanism required for functionality) measured five inches, the actual volume of the deodorant measured only three inches, the lawsuit says.
“Thus, the nonfunctional slack-fill represented about 40% of the size of the packaging,” the complaint asserts. “[The plaintiff] then concluded that there was no practical reason for the empty space other than for deceptive marketing practices.”
The plaintiff says he then expanded his investigation by purchasing a different product—Degree Sport Defense—and cutting it open, finding “the same empty space at the bottom.”
Moreover, the plaintiff adds that on both Degree products, the net weight was “very difficult for him to find.” On the Everest product, the print was “extremely small” while on the Sport Defense product, the net weight was incorporated into the label’s graphic design so as to make it difficult to see, the lawsuit alleges.
Upon visiting a local drug store, the plaintiff found that the net weight on competitors’ products was “much more easily readable and easily found” than on the defendants’ deodorants, the case states. While the net weight for competing products was either the same or bigger than the defendant’s products, the packages were much smaller, the suit says.
Finally, the case adds, the plaintiff observed through the clear packaging of two competing products (Gillette and Right Guard) with the same delivery mechanism as the defendant’s products that the packaging contained no slack fill at the bottom, meaning “there was no functional reason to have empty space at the bottom of the Defendant’s packaging.”
The other three plaintiffs claim they conducted similar investigations of the defendant’s Dove, Degree, and Axe products after finding that the deodorants were top-heavy and “easily toppled over” when placed on the counter. After comparing the size and net weights of similar products, the plaintiffs allegedly concluded that “Defendant’s packaging deceived them into thinking they were getting more product than they were.”
Which Deodorants Are Included in the Lawsuit?
The lawsuit includes any solid stick style antiperspirant and/or deodorant product, whether marketed for men or women, purchased from any source (whether retail, wholesale, mail order, or online) under the brand names of Degree, Dove, and Axe that were placed into the stream of commerce by Unilever.
It’s important to note that this case is only looking to cover California residents who purchased the products within a yet-to-be-defined time period.
If you don’t live in California but you’re interested in taking action, you may want to reach out to an attorney in your area to find out more about your rights and options.
I Buy This Deodorant. How Do I Join?
For most class action cases, there isn’t anything you need to do to join or participate in the lawsuit when it’s first filed. If the suit moves forward and settles, anyone affected will then be given an opportunity to file a claim for their piece of the settlement.
For now, keep on top of class action news and updates by signing up for ClassAction.org’s newsletter here.