NEW YORK (Legal Newsline) – A class action lawsuit filed against Harry &David LLC is part of a growing trend of litigation related to the amount of
actual product contained in consumer packaging, according to the executive director
The class action case filed by lead plaintiff Bria Brown of
Queens, New York, alleges that Harry and David misrepresented the volume of Moose
Munch Popcorn in its packaging. To fill the packaging void, Brown alleges that
the company uses non-functional slack fill.
“Non-functional slack fill class-action lawsuits have been
gaining in popularity,” truthinadvertising.org Executive Director Bonnie Patten
told Legal Newsline. “Unnecessary
discrepancies between the size of container and the amount of contents can not
only impact a seller’s credibility with consumers, but also lead to a multitude
of legal entanglements.”
Because of those discrepancies, Patten said use of
non-functional slack fill “should be avoided at all costs.”
According to the complaint filed Feb. 10 in the U.S.
District Court for the Southern District of New York, Brown and other members
of the class were tricked into buying Moose Munch in a package that contained
less actual popcorn than expected.
The plaintiffs allege that the company purposefully used
non-transparent packaging to hide how much Moose Munch was in each package.
Specifically, Brown alleges that the 10-ounce packages of
Moose Munch Popcorn’s milk chocolate, dark chocolate, classic caramel and
cinnamon maple pecan varieties “are sold in non-transparent cylindrical
cardboard boxes and marketed extensively throughout the United States,” according
to the lawsuit.
The plaintiffs also allege that the cardboard boxes that
house sealed, transparent packages of Moose Munch are not necessary and are
used to keep consumers from knowing how much popcorn they are getting.
The lawsuit claims the use of non-functional slack fill
violates the Federal Food Drug & Cosmetic Act, the Code of Federal
Regulations and New York state laws prohibiting the sale of misbranded food.
slack fill is permissible, non-functional slack fill that is not visible to
consumers through the packaging can be used as a deceptive marketing tactic to
lure consumers into purchasing an item based in whole or in part on a faulty
impression that they are getting more of the product than is actually the case,”
As a result of this deception, Patten said consumers are
In addition, Patten said this is not Harry & David’s
first time dealing with packaging-related litigation.
“In February 2012, California entered into a stipulated
judgment with Harry & David, which concerned, among other things,
non-functional slack fill,” she said.
In the California judgment, Patten said Harry & David
was fined $213,175, but that amount was suspended in accordance with the
company’s bankruptcy filing after it had paid $21,317.50 of the fine.
The California judgment also imposed an injunction
prohibiting Harry & David from “selling or distributing any product that
contained non-functional slack fill unless consumers could fully view the
contents of the package,” according to Patten.
Plaintiffs attorney C.K. Lee declined to comment on the
lawsuit. Harry & David did not respond to requests for comment.