Have you ever opened a can of tuna to find not very much tuna? Or a box of Milk Duds to find, in your opinion, not enough Milk Duds? How about a carton of Halo Top synthetic “ice cream” filled only two-thirds of the way up?
We have all had our disappointments. Pasta. Potato chips. Mike & Ikes. Raisinets. Butterscotch? Most of us keep these quiet disappointments to ourselves, but in the past few years, there has been at least one underfilling class-action lawsuit filed over every item I’ve just listed, as well as some non-edible products like nasal spray, deodorant, lip balm, and laundry detergent.
In the case of Halo Top, the company got the case thrown out after insisting that its product can “settle” in different ways due to temperature and air pressure en route. But that can’t possibly be the answer for all of these, and it also doesn’t explain why anyone would get riled up enough to sue a diet ice cream company.
So I spoke to Robert Niemann, a partner at the San Francisco-based law firm Keller Heckman who specializes in defending manufacturers and food companies in class action suits, and asked him why these cases seem to be so common and so increasingly silly. The first thing he taught me was that these are actually called “slack fill” cases, and the second thing he taught me was that San Francisco is a hotbed for them.
This interview has been edited for length and clarity.
So what’s with all of these lawsuits around boxes or bags or cartons of food being not full enough? How do they start?
These slack fill cases are almost always filed as class-actions because by themselves, they wouldn’t have any power. You’d only be claiming that basically one bag is not full or one container is not full. The power is in the number of sales. These are about slack fill, or rather “non-functional” slack fill. Every container has some amount of slack fill; the problem is non-functional slack fill, when there doesn’t seem to be a purpose for that size of a void in there. You’d think there’d be more product and less space.
Slack fill occurs [most often] in snacks, nuts, candy. The weight is always accurate. If it says there’s two pounds in there, there’s two pounds, probably a little bit more. But if the container is designed to hold four pounds and there’s only two pounds in there, obviously it’s only 50 percent full. The container is larger than necessary for the amount of product that’s in there, so it gives a deception of how much there is. It’s always accurate by weight, and that’s how people defend these cases.
The classic one people often think of is movie theater candy. You see these big boxes of Milk Duds or Jujubes or something like that, and when you buy it, you don’t get to touch it first because it’s in a glass case. You go into the theater and you’re like, “Gosh, it feels pretty empty in here.” It doesn’t begin to be filled until halfway down. Theater candy tends to be that way because it’s sold in bigger boxes than there tend to be in a grocery store.
There have been hundreds and hundreds of class-action lawsuits filed in the last five or six years against the food industry, and the vast majority of them are filed here in the Northern District of California. About 10 to 12 percent are slack fill cases. We up here in San Francisco have been dubbed the “Food Court” because we have so many food cases; it’s just sort of a mecca for these types of cases. The second is down in Los Angeles. The other states are New York, Florida, to some degree Illinois and Missouri. And then there’s other states that never have them. It’s strange.
But why are slack fill cases so popular in California?
California is very litigious. There’s a lot of food companies and candy companies out here in California. There’s a lot of lawyers that know how to do these types of cases. It’s just a trend that’s going through the food and beverage industry the last six or seven years. [Food companies] have become a target, with plaintiffs [acting] as bounty hunters trying to get companies to pay money. There’s about 10 or 12 district attorneys in the various counties in California that watch for these cases and prosecute them. They’re not going for compensation to a plaintiff; they’re going for penalties they can get for their county. District attorneys have been very successful. The most prolific one is Yolo County; you can Google them and see a lot of examples. The last one I can think of was about a year ago, against Ghirardelli, and I think they got $750,000 from them.
Here’s an interesting thing, though: The percentage of fill has never been codified. No court has said it’s gotta be 50 percent or more. There’s no numbers like that that have ever been specific. Because you can’t. It’s really in the eye of the beholder. It’s like beauty. You see it and you know it’s there. Plaintiffs will say, “This was 30 percent underfilled.” And the defendant will say, “That’s right. That’s how we engineered it, because it’s necessary to protect the product and allow for it to be sealed properly so that it’s fresh when we get it to you.”
This happens a lot with potato chips. Potato chips are very fragile — you need some air or space in there in order for them to breathe. It also happens with other products that are fragile. Candies are fragile. You have to have “head space,” they call it. If you have to seal the product at the top with either some type of glue or processed heat or steam, you need space at the top or the product can get crushed or it would get damaged or it would be not purified, it could not taste good.
How often do companies lose these cases and have to pay out money?
Most of these are settled. Most don’t go to trial. I won one recently earlier this year, down in the central district, which is Los Angeles, and it was for a pretzel company. [The plaintiffs] said it was underfilled by 50 percent, which it wasn’t. The court dismissed the case. The plaintiffs were not specific enough about the alleged underfilling. They couldn’t really prove it.
That’s not so much a slack fill case because slack fill usually refers to packaging as opposed to the amount that’s put in a fluid. If you’re at a Starbucks and you don’t want them to put too much ice in there, you just tell them, “Easy on the ice,” or, “Just give me a couple cubes.”
What’s the strangest slack fill case you’ve heard of?
One industry I was kind of surprised by was bodybuilding powders. They come in large boxes; I was surprised that many of them are not filled very much. Those are cardboard, so you can’t see in there. They tend to be sold in larger containers than it seems like they need. That’s the one area where it tends to be an issue more often than not.
It’s not always that easy to say what needs to be done to protect the product — that’s the issue. They want the product to look nice and wholesome and desirable when you open the bag. If the bag is too small, it can crush the product. The beat-up potato chips at the bottom, they’re all smashed; if the whole bag looked like that, you wouldn’t buy them. If you put chocolate in a clear plastic bag so you can see in there, it would leave streaks and residue on the inside of the bag and it just wouldn’t look very attractive. That’s another reason they keep the bags opaque.
Was there a big underfilling case that started this trend? Why is it happening?
There’s no specific mega-case that created an interest in this. It’s just that plaintiff lawyers are always looking for methods to get money from manufacturers of food products and other types of products. They look for the labeling to see if it’s sufficient or false or misleading. There’s a lot of lawyers out there that call themselves consumer advocates, and as consumer advocates, they look at products that are sold to the public and try to find something wrong with them.
Why do people get so riled up about slack fill? I’ve certainly opened a disappointing bag of PopChips or whatever, but I wouldn’t go sue.
Usually the plaintiff, the client, is not really somebody who came into the office one day and was upset. It happens. But usually these lawyers hire people to go out and find things for them, and they say, “Go over to the grocery store, see if you see anything that’s slack filled, or anything that has language that’s misleading.” So they actually roam the aisles of these grocery stores and other types of stores, like lions looking for zebras. There’s a bunch of lawyers I deal with and that’s all they do. All they do is file claims against companies for misleading claims or labeling or slack fill and that’s their whole practice. They have their sister, brother, receptionist, or somebody who goes out and does all these findings. And then they send out letters getting people to settle with them. If they don’t settle, they sue.
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