In May, the Ninth Circuit ended a slack fill case that had been filed against the sellers of Sugar Lip Treatment lip balms.  Plaintiffs alleged that the product packaging and net quantity statements deceived consumers given that dispenser tubes made a portion of the lip balm difficult to reach or use.  The Ninth Circuit affirmed the lower court’s dismissal after finding that no reasonable consumer could be deceived under the circumstances.  The court reasoned that product labels accurately disclosed the “correct weight of the included lip product” and the “use of a screw mechanism to push up a solid bullet of lip product are commonplace in the market.”  The court observed that a “reasonable consumer understands the general mechanics of these dispenser tubes and further understands that some product may be left in the tube to anchor the bullet in place.”  Based on this rationale, the court dismissed all claims that were based on California’s deceptive advertising laws and laws specifically on cosmetic labeling.  The court further found that the California law on “slack fill” could not apply given that “under the plain language of the statute, slack fill means the portion of the container without product, i.e., empty space.”  Lip balm left in tubes is not empty space.

This case could be helpful for dietary supplement makers facing slack fill lawsuits.  As we’ve discussed previously, plaintiff’s lawyers have filed numerous slack fill suits over powdered dietary supplement products, including protein powder, weight loss shakes, and powdered vitamin C.  State and federal slack fill laws include an exception for empty space that is due to “unavoidable product settling during shipping and handling.”  Practical arguments like those used in the lip balm case would no doubt bolster arguments that this exception for “settling” should apply.  Like lip balm tubes, opaque tubs used to sell powdered food and supplement products are commonplace.  Consumers, thus, likely understand the mechanics of settling powder and never expect such containers to be brimming with powder upon purchase.  Arguments like this can help remind courts that slack fill laws seek to prevent not all slack fill, but only slack fill that is misleading.