“Slack fill” lawsuits are increasingly popular, but they don’t get very far. 

By Tim Nelson
July 31, 2019

Anyone who’s bought a bag of chips has invariably felt cheated, cursing the heavens and wondering why the damn thing feels so empty. While most of us simply sigh and move on with our lives, there’s been a recent spate of lawsuits seeking damages in this exact situation, often to no avail. 

Over the past several years, lawyers and legal scholars have observed a marked rise in what are called “slack fill lawsuits,” which attempt to seek damages on a class-action basis from food manufacturers who allegedly deceive consumers by presenting them with packaging which implies that they’re getting much more of a given product than they actually do. 

Watch: Why Are Potato Chip Bags Always Half-Full?

A New York Law Journal article notes that approximately 300 such slack fill suits were initiated between 2016 and 2017. In those years and in the time since, defends in such class-action suits have included Barilla pasta, Halo Top ice cream, chip company Wise Foods, and a variety of candies you’d find at a movie theater’s concession stand. 

As Robert Niemann, a San Francisco-based lawyer who spoke to Vox, explains, these are class-action suits for a reason: “By themselves, [plaintiffs] wouldn’t have any power. You’d only be claiming that basically one bag is not full or one container is not full. The power is in the number of sales.” 

These class-action lawsuits tend to occur in certain super-litigious jurisdictions like California, New York, and Missouri. But even in states that would seem to take the side of consumers, the lawsuits aren’t often successful. Why? Because it’s not about the amount or presence of slack fill (which has multiple “statutory safe harbors” that essentially make its existence legal), but the actual weight of a given food product itself that matters.

“If [a label] says there’s two pounds in there, there’s two pounds, probably a little more,” Niemann explains. “The container is larger than necessary for the amount of product that’s in there, so it gives a deception of how much there is. It’s always accurate by weight, and that’s how people defend these cases.” 

With that defense so frequently invoked, it’s not often that a plaintiff win. Still, as the National Law Review  points out, things can get expensive for companies (attorney fees, etc.) when such cases make it to the discovery phase, no matter how frivolous a class-action slack fill claim may seem. That’s why food companies so often settle slack fill cases early on, not so much as an admission of guilt, but as a cost and time-saving measure. 

But as long as there’s some empty space in a bag of chips or a box of Milk Duds, expect angry consumers to continue initiating lawsuits. Just don’t expect those containers of food to get fuller any time soon. 

Advertisement