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 of  

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,” 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.


“While functional 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,” Patten said.


As a result of this deception, Patten said consumers are economically harmed.


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.

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