Whole Foods faces a proposed class action that alleges the eco-conscious supermarket’s 365-brand Long Grain & Wild Rice pilaf is packaged with an unlawful amount of empty space called “slack fill.”
The 20-page lawsuit says that although Whole Foods prominently touts its commitment to sustainable practices and the reduction of excess plastic waste, the 365 rice pilaf comes inside a cardboard box that contains a plastic bag filled with roughly as much empty space as rice. As a result of this “nonfunctional” slack fill, consumers are misled by the product’s packaging into believing that they are buying much more rice pilaf than they actually receive, the suit contends.
“Judging from the size of the box, reasonable consumers expect it to be substantially filled with rice and contain the packet of seasoning,” the complaint reads. “However, over 50% of the box is empty space, because the rice and seasoning packages correspond to 3.25 inches on the tape measure.”
Per the complaint, federal and identical state regulations dictate when it is valid for a product to be packaged with what appears to be excess space, or slack fill. Whereas, for instance, potato chip bags contain a significant amount of air to prevent the contents therein from being crushed, Whole Foods’ rice pilaf faces no such risk of breakage, and therefore does not need to be packaged with more than 50 percent empty space, the lawsuit argues.
Additionally, the 365-brand rice pilaf faces no issue with regard to the rice and flavoring packets settling during shipping and handling, which also negates the need to fill the package with so much empty space, according to the case. Moreover, the packaging of the rice is not required to perform a specific function, such as play a role in the preparation or consumption of the food, and is not a reusable container, all of which play into whether slack fill is necessary for the packaging of a particular product, the lawsuit stresses.
The suit also states that Whole Foods has the ability to modify the labeling of the rice pilaf to eliminate or reduce consumer deception by adding, for example, a fill line, transparent window or actual amount depiction on the product label.
“Because the package does not allow consumers to view its contents, and contains nonfunctional slack-fill, the packaging is misleading to consumers,” the filing argues.
The complaint posits that Whole Foods slack-fills its 365 rice pilaf in the manner at issue so as to match the height of the product to the shelf heights in stores.
“This makes the shelves look full, which appeals to consumers and makes them willing to spend more money,” the suit claims. “This shows a deliberate attempt, and knowledge, to mislead consumers.”
Whole Foods has sold more of the Long Grain & Wild Rice pilaf, and at higher prices, than it would have had it packaged the product with less slack fill, the complaint alleges. The nonfunctional slack fill amounts to a violation of Whole Foods’ pledges and commitments to sustainability and environmental stewardship, the lawsuit argues.
The case looks to represent consumers in Illinois, Pennsylvania, Michigan, Iowa, Rhode Island, Minnesota, Ohio, Georgia, North Dakota, Texas, New Mexico, North Carolina, Virginia, New Hampshire, South Dakota and Oklahoma who bought the Whole Foods rice pilaf within the applicable statute of limitations period.
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