Why Most Slack-Fill Claims Should Fail On The Merits

By Sarah Brew, Tyler Young and Nicholas Teichen (March 16, 2018, 10:30 AM EDT) -- The past few years have seen a dramatic rise in slack-fill class actions (i.e., lawsuits alleging that a food product's packaging is misleading because it contains nonfunctional empty space — or "slack-fill" — and thereby suggests that that the package contains more food than it really does). But unlike claims related to a food product's qualities or ingredients, which are not always discernable to the ordinary consumer, the amount of slack-fill in a product is apparent as soon as the package is opened. In other words, it's possible to buy a product for years without realizing that it may not be what's claimed on the label. In contrast, it's not reasonably possible to purchase a product repeatedly without realizing the packaging contains the alleged slack-fill. Consequently, slack-fill claims by consumers who are repeat purchasers cannot — or at least should not — succeed....

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