McCormick Pepper, Advil, Starbucks: ‘Slack Fill' Suits Grow

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By Julie A. Steinberg

Oct. 25 — McCormick pepper, Advil pain relief, and Starbucks iced coffee: Litigation is expanding over whether consumers are being duped by oversized packaging.

The technical name for what consumers are suing over is “slack fill”—the difference between the actual capacity of a container and the volume of product inside. Consumers allege they're paying too much for too little.

And, to be clear, we’re talking about a particular type of slack fill: “non-functional slack fill,” literally useless empty space, which is prohibited by federal regulations.

Functional slack-fill, like air in potato chip bags that cushions fragile snacks against breakage, is OK.

Suits are trending upward over packaging that makes it look like consumers are getting more, according to Bonnie Patten, executive director of Truthinadvertising.org (TINA), a consumer watchdog group based in Madison, Conn. that has tracked various types of federal consumer fraud class suits since 2013.

Ten such cases were filed in 2013 and 2014; more than 50 have been filed since then, Patten told Bloomberg BNA.

Courts weighing in on slack-fill and other types of underfilling challenges have reached different conclusions on whether claims alleging deception should go forward.

`Not a lot of Head-Scratchers.’

A theme emerges: The cases are either thought meritorious or they meet with a quick dismissal, Patten said.

“There aren’t a lot of head-scratchers here,” she said.

In one recent ruling, the U.S. District Court for the District of Columbia said McCormick & Company, Inc.’s iconic pepper tins—the same size and price as ever but holding less pepper now than before 2015—could deceive consumers into thinking they were still getting the same amount.

The ruling benefits Watkins Inc., a business competitor that sued under the Lanham Act, contending it lost customers to McCormick because buyers couldn’t tell from the outside that the company had reduced its product's volume. Over time, other companies have adopted McCormick’s dimensions, so they all allegedly look the same on the shelf.

Consumers themselves have also sued McCormick. The pepper cases, which accounted for 11 suits in TINA’s 2015 tally, are part of multidistrict litigation along with the Watkins suit. The court has yet to decide whether the consumer claims can withstand dismissal.

Pepper Case Called Good for Plaintiffs

“The McCormick case is better than many for the plaintiffs because of the allegedly deceptive change which could have confused people about whether the product would continue to be the way it was,” Rebecca Tushnet, a professor of law at Georgetown University Law Center in Washington, told Bloomberg BNA.

“Most of us rarely read the label the second or third time we buy something,” said Tushnet, who teaches intellectual property, advertising law and First Amendment law.

But other judges have rolled their eyes at plaintiffs who have sued over slack fill, including in such items as a high-end lip balm, Advil’s pain relief medication packaging and Starbucks iced drinks.

In the lip balm case, the U.S. Court of Appeals for the Ninth Circuit rejected the plaintiff’s contention that Fresh, Inc.'s packaging was deceptive because the dispenser took up space in the tube that made 25 percent of the balm unusable.

A reasonable consumer understands that some product may be left in the tube to anchor the dispenser mechanism that pushes up the lip product, the court said.

The U.S. District Court for the Central District of California rejected a suit alleging that Starbucks Corp. defrauds customers by advertising that its iced drinks contain more liquid than they actually do, saying small children understand ice displaces liquid.

The Advil plaintiffs said the appearance of the boxes led them to expect the entire volume of the packaging would be filled to capacity with pills.

That, the U.S. District Court for the Eastern District of New York said, “does not pass the proverbial laugh test.”

Why? The packages clearly display the pill count, the opinion said. “It’s not probable or even possible that the packaging could have misled a reasonable consumer,” the court said.

Advil maker Pfizer Inc., which said it doesn’t have any other slack fill suits pending, told Bloomberg BNA, “We are committed to truthful and accurate marketing of our products and, as such, we prominently display the number of pills in each Advil container on the package for consumers to base their purchasing decisions.”

Attorneys representing the Advil plaintiffs didn’t respond to an e-mail request for comment.

Hidden Price Premium in Sweets

Meanwhile, Mondelez International Inc., maker of Sour Patch Kids candy, cited the Advil opinion in a letter to Judge Colleen McMahon of the U.S. District Court for the Southern District of New York, who’s weighing a dismissal motion in a proposed class suit that challenges the amount of empty space in candy boxes.

The packaging discloses the net weight and the exact number candies in each box, the letter said.

“Further, anyone who picks up a box of Sour Patch Kids will immediately hear the rustling sound and feel the movement of the candies within the box, alerting them that there is some empty space and that it is not filled literally to the brim.”

But the plaintiffs say the opinion cited in support of dismissal involves an over-the-counter drug product. The ruling, consequently, doesn’t affect their case, which involves the Food and Drug Administration’s prohibitions on non-functional slack-fill in food.

Meanwhile, the Eight O'Clock Coffee Company and The Hershey Company face packaging challenges of their own.

Suits contend these companies sell specialty varieties of coffee and chocolate kisses in the same size packaging, and for the same price, as regular versions.

The alleged deception? A hidden price premium for the specialty flavors, which have less net weight.

Tushnet said she doesn't have independent knowledge of those cases, “but it is true that people often rely on shortcuts in purchasing.”

“If they have no reason to distinguish quantity they may well not do so,” she said. “Since, if the size is the same, a consumer’s reaction may well be that only the flavor/specialty variety is different.”

That would be true, for example Tushnet said, if she “were choosing between Diet Coke, Coke Zero, and Cherry Coke.”

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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