The Challenges Of Measuring Harm In Slack-Fill Cases

“Slack-fill,” the empty space in the containers of packaged products, has been the subject of several class action suits in recent years. While only a small minority of federal class action filings have reached the class certification stage since 2009 (when plaintiffs began filing these cases), all instances in which courts have certified a class have occurred in the last few years.^[1] Measuring harm to consumers in these cases may, however, be more complicated than in typical product misrepresentation matters due, in part, to the difficulty of defining the “but-for” world.  

Defined as the difference between the actual capacity of a container and the volume of the product in it, slack-fill is “nonfunctional” under the Code of Federal Regulations if its existence cannot be explained by any of the following six reasons:^[2]

• “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 (…);” or
• “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).”

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