Takeaway: There has been a proliferation of “slack-fill” class action litigation. These cases are premised on the notion that a large product container deceives a reasonable consumer, under the theory a reasonable consumer will only pay attention to the size of the container in assessing the amount of product contained within it. A recent decision by the Southern District of New York dismissing “slack fill” claims shows that context matters and that a reasonable consumer should read the side of a package to figure out how much product is actually inside the container. Daniel v. Tootsie Roll Industries, LLC, 17 Civ. 7541 (NRB), 2018 WL 3650015 (S.D.N.Y. Aug. 1, 2018). According to Daniel, a district court cannot assume a reasonable consumer would be “stupid” or “the least sophisticated consumer.”
The Daniel case focused on Junior Mints, a product of the Tootsie Roll company. The class representatives purchased boxes of Junior Mints of various sizes. The non-transparent boxes contained not only chocolate mints but an allegedly high percentage of pure air, alleged by the class plaintiffs to constitute “non-functional slack-fill.” According to the plaintiffs, “the size of the Product boxes in comparison to the volume of candy contained therein makes it appear that consumers are buying more than what is actually being sold, thereby denying them the benefit of their bargain.” 2018 WL 3650015, at *2.
Among other claims, the class plaintiffs brought claims under New York law for deceptive and unfair trade practices (N.Y. Gen. Bus. Law § 349 (“GBL § 349”)) and false advertising (“GBL §§ 350, 350-a”). To allege an unfair trade practices claim under GBL § 349, a plaintiff must allege and prove three elements: (1) “the challenged act or practice was consumer-oriented”; (2) “it was misleading in a material way”; and (3) “the plaintiff suffered injury as a result of the deceptive act.” Id. at *11. False advertising claims under GBL §§ 350 and 350-a must satisfy the same elements.
To explain “slack-fill” claims, the district court pointed to the pertinent federal regulatory scheme of the Food Drug & Cosmetic Act (“FDCA”). A 1990 amendment to the FDCA focuses on misleading product packages. According to this amendment, “[a] food shall be deemed to be misbranded” if “its container is so made, formed, or filled as to be misleading.” Id. at *3 (quoting 21 U.S.C. § 343(d)). As the district court further explained: “One category of misleading products are those that contain “slack-fill,” defined as “the difference between the actual capacity of a container and the volume of product contained therein.” Id. (quoting 21 C.F.R. § 100.100(a)).
Consistent with federal law, New York statutes (including GBL § 349 and GBL §§ 350, 350-a), “have been interpreted to provide a private right of action for excessive slack-fill.” Id.
To avoid preemption by the FDCA, “plaintiffs must allege at the threshold that the slack-fill in the Products is nonfunctional.” Id. at *9. But even if a Product contains “nonfunctional” slack-fill, the plaintiffs must plausibly allege that the elements of the deceptive trade practice statutes at issue are also satisfied. In Daniel, the district court side-stepped the question of whether the Junior Mints packages contained non-functional slack-fill, focusing instead of whether the packages were deceptive to a reasonable consumer under New York law.
Under the New York statutes, whether a representation is misleading is determined objectively – the alleged act must be “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Id....
