This question is popping up in federal and state courts around the country, as plaintiffs’ lawyers seek class action status for claims that the empty space in food and beverage containers, referred to as “slack fill,” is misleading and deceptive to consumers. These purported class representatives allege that manufacturers deceive consumers by including more empty space in their packaging than the Food and Drug Administration (FDA) regulations allow. While the federal laws and regulations provide no private right of action, plaintiffs in these actions allege that violations of the FDA slack fill regulations are evidence of violations of state consumer protection and deceptive advertising laws.
Early slack fill complaints have been met with resistance. Courts have dismissed many complaints out of hand for failure to plead a cognizable claim or for failure to meet the Twombly/Iqbal plausibility standards for pleading. As a result, the allegations in the complaints are becoming increasingly detailed and complex. As the flurry of suits continues, the question remains: Are these allegations just a bunch of air?
