Slack-Fill:  Deceptive Packaging That Cheats Consumers

The Federal Fair Packaging and Labeling Act (“FPLA”), enacted 1967, requires manufacturers to accurately disclose the products net weight on labels.  Part of FPLA’s stated purpose is to prevent manufacturers from deceiving consumers through packaging and labeling in part by informing consumers about the accurate amount of packaged products they purchase.  See 15 U.S. Code § 1451.  Regardless of the disclosed net weight, packaging still does not reveal whether there is any slack-fill (the empty space in consumer packaging) and, if so, how much.

Potato chips, popular consumer goods, are a good example. The air in chip bags is usually determined to be “functional slack-fill” meaning that the empty space serves a purpose.  In the case of chips, the air is added to protect the chips from crumbling while being handled and shipped.  However, there are many products sold in packages with empty space without purpose. This is called “nonfunctional slack-fill.”  Nonfunctional slack-fill is a way for companies to dupe consumers into believing that they are buying a greater volume of products.

By way of example, McCormick, in 2015, was sued for reducing the ground black pepper sold in their red and white tins from 4 to 3 ounces. McCormick deceptively kept the tins the same size.  Manufacturers are undoubtedly aware that consumer studies reveal that consumers rely solely on packaging to determine the amount of product contained inside.  See Jesper Clement, Visual influence on in-store buying decisions: an eye-track experiment on the visual influence of packaging design, 23 Journal of Marketing Management, (Feb 01, 2010).  Manufacturers hope that the change is too small to notice.  While the claim may be too small individually, consumers may avail themselves of class action remedy.

The Federal Food and Drug Administration (“FDA”), which administers the FPLA and is the United States’ primary consumer protection agency, takes nonfunctional slack-fill claims seriously and enforces claims under the 1938 Food, Drug, and Cosmetic Act and Title 21 of the Code of Federal Regulations such as Section 100.100 that covers misleading containers: “In accordance with section 403(d) of the act, a food shall be deemed to be misbranded if its container is so made, formed, or filled as to be misleading.”  21 C.F.R. § 100.100.  Further, a “container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill.”  21 C.F.R. § 100.100(a).  States have similar laws protecting consumers against nonfunctional slack-fill.  California, one state well known for ardently protecting and enforcing consumer rights, has several consumer protection laws aimed at protecting consumers against such deceptions.