B&G Foods slapped with slack-fill suit

Puffy Packaging

Consumer David Greenstein is pursuing excessive slack-fill claims against the producer of popular puffed rice and corn snack food Pirate’s Booty.

Greenstein, who is representing himself in the lawsuit, claims to have purchased one package of Aged White Cheddar Pirate’s Booty, manufactured by B&G Foods, Inc., in April for $2.00. According to his complaint, upon opening the product, Greenstein noted that there were three inches of empty space in the packaging. He alleges the packaging contained more than 40 percent slack-fill, which, if true, would constitute a violation of California’s consumer protection laws.

Rising Tide

Under federal, California and other states’ laws, nonfunctional slack-fill is prohibited. Certain products require functional slack-fill by their very nature – for example, packages for microwaveable foods that include room to expand during heating. Some pharmaceutical companies have argued that regulator-mandated patient information notices require the use of slack-fill, since larger package sizes are needed in order to fit the notices.

Slack-fill suits have become increasingly common. Some plaintiffs’ lawyers boast precise litigation templates that allow them to flood the courts with similar claims (more than a third of slack-fill suits originate in California’s Northern District, which is playfully nicknamed “the food court”). All told, the number of filings has increased sixfold since 2013. Nonetheless, consumer and competitor successes have been few and far between.

Treasure?

Greenstein’s suit, originally filed in California Superior Court, County of Los Angeles, was removed to the U.S. District Court for the Central District of California. The suit brings claims for false, misleading and deceptive advertising and seeks injunctive relief, legal fees and general damages. Attractive as that sounds, however, slack-fill cases have rarely resulted in a large payday. The one big exception is an action in the Northern District of California that successfully argued that tuna buyers were sold under-filled tuna cans; it resulted in a $12 million judgment.

The Takeaway

In 2013, the California governor signed a bill that changed how existing packaging laws are enforced, strengthening exemptions to the slack-fill laws. Despite this, the number of slack-fill cases filed in the state has continued to rise. We may eventually see a decrease in the number of slack-fill cases filed against companies given the lack of success they have had. In the meantime, product manufacturers should keep in mind that only nonfunctional slack-fill is prohibited. To assess risk, companies can review the available exemptions in California’s revised slack-fill law.