In the last few years, food and beverage companies have been defending against a new trend of claims related not to the products they manufacture, but the packages in which the products are sold. Recently filed class action complaints allege that food and beverage manufacturers are reducing the amount of product inside opaque containers but not reducing the size of the containers, or that the manufacturers do not adequately fill the containers. Classic examples include bags of chips or boxes of rice with extra container space that is only visible once the package is open.

This extra space is known as “slack-fill.” The US Food and Drug Administration (FDA) defines slack-fill as the difference between the actual capacity of a container and the volume of the product contained therein. 21 C.F.R. § 100.100. Under the FDA’s regulations, 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.” Id. The FDA recognizes that some slack-fill does have a purpose. Thus, functional slack-fill, such as the extra space that is intended to help protect the contents of the package or that is the result of unavoidable product settling, is exempt from the FDA’s regulations. See id. The State of California also prohibits nonfunctional slack-fill in food packaging, but defines “nonfunctional slack-fill” as the empty space in a package that is filled to “substantially” less than its capacity. Cal. Bus. & Prof. Code §§ 12606, 12606.2.

There have been significant settlements in some recent cases. In Soto v. Wild Planet Foods, Inc., No. 5:15-cv-05082-BLF (N.D. Cal.), and related case Shihad v. Wild Planet Foods, Inc. & Does 1-25, No. 1:16-cv-01478-BLF (N.D. Cal.), the plaintiffs sought to represent nationwide classes of individuals who purchased several types of Wild Planet’s five-ounce cans of Sustainable Seas Tuna. The plaintiffs alleged that the Substantial Seas Tuna cans were underfilled and “substantially underweight.” (Complaint, No. 5:15-cv-05082-BLF, Dkt. 1.) Their claims stemmed from tests performed by the US National Oceanic and Atmospheric Administration demonstrating that the five-ounce tuna cans contained only 2.20 to 2.27 ounces average of tuna—which was more than 30% below the federally mandated minimum standard of fill of 3.23 ounces for five-ounce cans. (Id. at ¶¶ 2-3.) The plaintiffs alleged claims for breach of express warranty, breach of the implied warranty of merchantability, unjust enrichment, fraud, negligent misrepresentation, and violations of California’s Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law.

The parties agreed to a nationwide class settlement of $1.7 million collectively for the Soto and Shihad actions. (Stipulation for Class Action Settlement, No. 5:15-cv-05082-BLF, Dkt. No. 44 (Dec. 23, 2016).) Under the agreement, the lawyers seek fees in the amount of one-third of the total $1.7 million value of the settlement fund, plus reimbursement for costs and expenses. (Id.) The proposed settlement class includes anyone in the United States who purchased any can of tuna made or sold by Wild Planet from November 5, 2011 through the settlement approval date, with a $29.00 per claim payout for settlement class members. (See Notice of Motion and Motion at 8, No. 5:15-cv-05082-BLF, Dkt. 45.)

The plaintiffs’ lawyers for Soto and Shihad were previously successful in litigation against StarKist, wherein they resolved virtually identical claims through a 2015 settlement valued at $12 million, which included $3.6 million in attorney fees. Hendricks v. StarKist Co., No. 13-cv-00729-HSG (N.D. Cal.). More than 2.4 million class member claims were made in the StarKist action, which the lawyers said was “the largest number of submitted claims from class members in the history of class actions.” (See Notice of Motion and Motion at 9, No. 5:15-cv-05082-BLF, Dkt. 45.)

Tuna manufacturers are not the only food companies that have recently been subject to and settled slack-fill claims. In January 2017, the parties in Gioia v. GNC Holdings, Inc. reached a settlement agreement in a putative class action where the plaintiffs alleged that GNC intentionally packaged certain whey protein products in large opaque containers that contained approximately 40% nonfunctional empty space. No. 3:15-cv-02273-WQH-NLS (S.D. Cal.).

In order to mitigate the risk of potential slack-fill litigation, food and beverage manufacturers should package their products in keeping with the safe harbors set forth in 21 C.F.R. § 100.100, and identify ways to stay within the scope of those provisions. Consider taking these important steps to help avoid slack-fill claims:

  • Use clear (versus opaque) packaging where possible to avoid being subject to the regulations and avoid claims of consumer confusion.
  • If clear packaging is not possible, clearly identify the net contents of the package on the label and consider adding disclosures about the product’s settling after packaging.
  • Add fill lines to the outside of packages to visually demonstrate to consumers how much product is in the containers.
  • If empty space is necessary, keep clear records of the function of this slack-fill to rebut claims of having nonfunctional slack-fill in product containers.