SILVER SPRING, Md. (Legal Newsline) – The number of slack-fill complaints are sharply on the rise, triggered by new, sweeping Food and Drug Administration regulations aimed at protecting consumers from product manufacturers.

The FDA’s Food, Drug and Cosmetic Act (FDCA) defines the amount of slack fill allowable in product packaging. The FDA meticulously defines slack-fill as “the difference between the actual capacity of a container and the volume of product actually contained therein.”

As more and more consumers accuse companies of systematically deceiving consumers by deliberately including maximum levels of slack in their products, lawsuits are proving to be particularly attractive.

“I don’t think most of these claims are well-founded, and in most cases the defendants will be vindicated,” Meghana Shah, a partner with New York-based Sutherland Asbill & Brennan LLP, told Legal Newsline. “But there are a well range of plaintiffs that this can apply to action invoking legislation for class actions.”

FDCA generated putative class actions are typically coupled with claims of unfair or deceptive trade practices. The same federally instituted regulations apply to a wide variety of different products, among them snacks, lip products, spices, detergents and supplements.

“I don’t think most of these claims are well-founded, and in most cases the defendants will be vindicated,” Meghana Shah, a partner with New York-based Sutherland Asbill & Brennan LLP, told Legal Newsline.

There are many examples, including M&M manufacturer Mars Inc. being accused of shortchanging consumers by routinely under-filling tubes of its M&M Minis. 

 Litigation has now extended from manufacturers to retailers. At least one big-box store and other unnamed retailers are named on a pending multidistrict litigation over allegations of slack-fill in brands of McCormick pepper.

“What we’re seeing is most cases being premised around the appearance and idea of deception,” added Shah.

In terms of jurisdiction and where most of the cases are being filed, there also seems to be a pattern.

“Up until now, most of them have been filed in New York or California, depending on such factors as the type of product at issue,” Shah said. “As the contours of the law develop and a precedent is established, we will start to get a clearer picture. The history of packing in the U.S. is complex, but the allure for plaintiffs (seeking) recovery using class action suits is on the rise.”

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