Unless you were born yesterday, you know that packaged goods usually contain some empty space in the box, bottle, or bag. This has been true for as long as there have been packaged goods. What is relatively new is that consumers—or, rather, a small cadre of specialized plaintiff’s lawyers—are suing over it. But as Newton said, for every action, there is an equal and opposite reaction. And the more that lawyers have inundated courts with these suits, the more aggressively courts have responded to shut the silliness down. This post examines the regulatory underpinnings of these so-called “slack-fill” suits and the many bases that courts have found for letting the air out of them.
I. What Is “Slack Fill” And How Is It Regulated?
Slack-fill is the difference between the actual capacity of a container and the volume of product contained therein. The concept is grounded in the federal Food, Drug, and Cosmetic Act (FDCA) and its implementing regulations. The FDCA itself doesn’t expressly mention slack-fill, but it provides that a food, drug, or cosmetic is “misbranded” (i.e., violates the Act) if “its container is so made, formed, or filled as to be misleading.” 21 U.S.C. §§ 343(d) (foods), 352(i)(1) (drugs), 362(d) (cosmetics). In theory, at least, this could encompass some instances of slack-fill.
In the mid-20th century, the FDA brought a series of enforcement actions against food manufacturers, asserting that slack-fill rendered their containers “filled as to be misleading” under § 343(d). See United States v. Cataldo, 157 F.2d 802 (1st Cir. 1946); United States v. 116 Boxes … Arden Assorted Candy Drops, 80 F. Supp. 911 (D. Mass. 1948); United States v. 174 Cases … Delson Thin Mints, 180 F. Supp. 863 (D.N.J. 1960), aff’d after remand, 302 F.3d 724 (3d Cir. 1962). The agency lost each one of these cases. As one of these courts observed, slack-fill is simply unlikely to mislead a reasonable consumer:
The [FDCA] … prohibits the shipment of a package of candy which is in fact so slack-filled as to be misleading…. [But] [i]nfantile anticipation is not the test. Rather it is what would be expected by an ordinary person … who has been led to expect and desire machine-packing…. [F]rom buying various types of five-cent candies, cough drops, and lozenges packed by machine in standard rectangular containers, [the ordinary consumer] has come to expect some slack or air space. Indeed, he recognizes that tight packing would often solidify into a mass pieces which he prefers to have separate. It is the expectations of a person who has that common degree of familiarity with our industrial civilization which furnish the standard….
Arden, 80 F. Supp. at 912 (emphasis added). Chastened, the FDA stopped bringing slack-fill cases altogether after 1962. There things remained for three decades.
Then, in 1990, Congress passed the Nutrition Labeling and Education Act, Pub. L. 101-535, 104 Stat. 2353, substantially overhauling the country’s food labels. That statute also directed the FDA to study whether the FDCA’s various provisions were being adequately enforced in relation to foods. See 58 Fed. Reg. 2957, 2957 (Jan. 6, 1993). The FDA concluded that § 343(d)’s general prohibition against “misleading” food-container fill was inadequate and essentially unenforceable, and so it proposed food-specific slack-fill regulations. Id. at 2798.
Those regulations are now found in 21 C.F.R. § 100.100(a). They provide that a food container that does not allow the consumer to fully view its contents shall be considered “misleading” under § 343(d) if it “contains nonfunctional slack-fill.” They also provide that slack-fill is not misleading if it exists for one of six “functional” reasons:
- “Protection of the contents of the package”;
- “The requirements of the machines used for [packaging]”;
- “Unavoidable product settling during shipping and handling”;
- “The need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of a food)…”;
- “The fact that the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has [significant independent] value….”;
- “Inability to increase [the] level of fill or to further reduce the size of the package (e.g., where some minimum package size is necessary to accommodate required food labeling …, discourage pilfering, facilitate handling, or accommodate tamper-resistant devices).”
Again, however, these regulations apply to foods only. The FDA has never adopted slack-fill regulations for non-food products, such as drugs and cosmetics. For these products, the only arguable FDA requirement concerning empty space remains the general statutory prohibition of “misleading” container fill.[1]
The FDCA and its regulations provide no private right of action, so consumers can’t sue directly to enforce the statute’s prohibition on “misleading” fill or its food-specific slack-fill regulations. See Wurtzburger v. Ky. Fried Chicken, 2017 U.S. Dist. LEXIS 205881, at *10-11 (S.D.N.Y. Dec. 13, 2017). Consumers, therefore, generally bring their slack-fill claims under state consumer-protection statutes or state common-law theories, arguing that these causes of action incorporate or mirror the standards found in the FDCA and its regulations. See id.
II. What Are Courts Doing With Slack-Fill Cases?
As noted above, after decades of FDA non-enforcement, slack-fill has recently risen to prominence due to the efforts of enterprising plaintiffs’ lawyers. To give some sense of the trajectory, a Lexis search for court decisions mentioning slack-fill shows that over half of all judicial mentions have come in the last three years alone. While a few courts were initially willing to let these suits proceed to discovery, they have increasingly met with the same judicial resistance faced by the FDA’s enforcement actions of yesteryear.
Recent slack-fill suits have almost uniformly faltered at the motion-to-dismiss stage, for four main reasons:
- Reason No. 1: Saying It’s “Non-Functional” Doesn’t Make It So
As noted, only “nonfunctional” slack-fill violates the FDA’s fill regulations for foods. Thus, to get past a motion to dismiss, plaintiffs must plausibly plead that the empty space in a food product’s package does not serve one of the regulation’s six specified “functions.” Courts are now routinely subjecting allegations of nonfunctionality to rigorous scrutiny and dismissing complaints if those allegations are “wholly conclusory.” Bautista v. CytoSport, Inc., 223 F. Supp. 3d 182, 190 (S.D.N.Y. 2016); see also Morrison v. Barcel USA, LLC, No. 18-CV 531, 2019 U.S. Dist. LEXIS 1090, at *6-7 (S.D.N.Y. Jan. 2, 2019); Daniel v. Mondelez Int’l, Inc., 287 F. Supp. 3d 177, 187-88 (E.D.N.Y. 2018); Alce v. Wise Foods, Inc., 2018 U.S. Dist. LEXIS 54009, at *18-19 (S.D.N.Y. Mar. 27, 2018); Wurtzburger, 2017 U.S. Dist. LEXIS 205881, at *11-12.
To survive dismissal, plaintiffs must plead actual facts demonstrating, e.g., “that the slack-fill in the [product] is unnecessary to protect the [contents], or does not reflect the requirements of the machines used for enclosing the packages, or is not the result of unavoidable product settling, or is not the consequence of an inability to increase the level of fill or to further reduce the size of the package.” Alce, 2018 U.S. Dist. LEXIS 54009, at *19-20 (emphasis added). Courts recognize that “[i]t may be challenging for a plaintiff” to plead concrete facts supporting a finding of nonfunctionality “before discovery”—but they have held that Iqbal’s plausibility standard requires no less, because a bare assertion of nonfunctionality is a legal conclusion, not a proper factual allegation. Id. at...
