Jamie Kelly May 23, 2016, 12:15pm


SAN FRANCISCO (Legal Newsline)—A class action lawsuit against food and beverage company Mondelez International claiming some of its packaging contains non-functional slack fill is just the latest example of customers suing over what they see as deceptive marketing, a consumer advocate says.

“We have seen great number of cases being brought in regard to non-functional slack fill,” Bonnie Patten, executive director of truthinadvertising.org, recently told Legal Newsline. “I think there were 34 cases in 2015, and it looks like 2016 is on track to have similar number of cases. It's definitely a hot item for class actions at the moment.”

The lawsuit, filed in U.S. District Court for the Northern California District, alleges that the company’s “Go Paks,” which contain snack foods such as Teddy Grahams, are under-filled by 25 percent or more.

Patten said that one of the reasons consumers have been more file such class action suits over slack fill is likely because they can easily see the amount in a package.

“Because it's a very visual issue, consumers can readily understand this issue,” she said. “They have an expectation of how much they're going to receive when they buy something, so they really do feel misled when they open the package and only, say, 60 percent of the volume is taken up by the good.”

She pointed to the fact that as many as a dozen cases were filed against spice maker McCormick between June and November 2015. In those cases, consumers allege that McCormick reduced the amount of black pepper in a container by 25 percent, but kept the same size container and charged the same price.

“If I've been buying the same product for 'x' number of years, there's an assumption that it stayed the same,” she said.

Even as they become more popular, such cases aren’t necessarily easy to win, Patten said. At the federal level, food, drugs and cosmetics are covered by the Fair Packaging and Labeling Act, which doesn’t allow private individuals to file suits about misleading packaging.

States, however, are free to write their own laws that do allow such lawsuits. There isn’t much case law on the subject, and that can be a strong defense, so it’s difficult to predict an outcome, she said.

Even when consumers do prevail, though, it isn’t necessarily a big payday for any of the litigants.

“I don't think plaintiffs will get an economic windfall in these kinds of cases,” Patten said. “My best guess is that if there's a settlement, you're going to see a change in packaging, which obviously is very costly for corporations. And then what I would guess is that consumers will either get a rebate or a coupon, because the claims here are about quantity of product, not that they didn't want the product in the first place.”

A spokeswoman for Mondelez International declined to comment, citing a corporate policy against speaking about pending lawsuits.

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