Deceptive Marketing 101

Published on November 27th, 2017

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Does Size Really Matter? A Primer on Slack-Filled Packaging

Under-filled or slack-filled packaging has vexed consumers for years. You know what we’re talking about. You’re famished so you go out and buy a family size bag of potato chips for a family of one. But when you rip open the bag in the car because you can’t wait until you get home there’s like, three chips in there. What gives?

Now, you might not want to hear this but that empty space can actually serve a purpose. But while there is such a thing as functional slack-fill, which, among other things, protects the contents of a package from getting crushed during transport, there is also such as thing as nonfunctional slack-fill, which can get companies into legal trouble.

Says the FDA, the presiding regulatory voice on these matters:

A container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill.

What is nonfunctional slack-fill, you ask? The FDA’s slack-fill rule defines it as the empty space in a package that is filled to less than capacity for reasons other than:

  • The protection of the contents of the package;
  • The requirements of the machines used for sealing the package;
  • Unavoidable product settling during shipping and handling;
  • The need for the package to perform a specific function, such as where packaging plays a role in the preparation or consumption of a food (think TV microwaveable dinners, instant noodles);
  • The fact that the package itself has value comparable to the value of its contents and independent of its function to hold the food, for example, as a commemorative item;
  • An inability to increase the contents or to decrease the size of the package, such as where some minimum package size is necessary to accommodate required food labeling.

So, to review: functional slack-fill, good, nonfunctional slack-fill, bad.

Seems simple enough yet a growing number of class-action lawsuits allege that companies are under-filling packages under the guise of functional slack-fill. In just the past few years, dozens of lawsuits have objected to the amount of alleged unnecessary empty space in a number of neatly packaged consumer goods. In addition to good ole greasy potato chips, these items include several varieties of boxed candy, protein powders, and liquid laundry detergents, just to name a few. Here’s a roundup of some of the slack-fill class-action lawsuits that TINA.org’s been tracking:

                         Product Amount Package Type Empty Space Alleged in Lawsuit
All liquid laundry detergent 32, 50 fl. oz. Bottle 17 percent
Arm & Hammer liquid laundry detergent 43-131 fl. oz. Bottle At least 14 percent
Body Fortress and Pure protein products 2 lb. Tub  More than 37 percent
Dymatize protein products 3-5 lb. Tub More than 45 percent
Harry and David Moose Munch Gourmet Popcorn 10 oz. Box 43 percent
Junior Mints 3.5 oz. Box 43 percent
Mike and Ike Original Fruits 5 oz. Box 30 percent
Pirate’s Booty Aged White Cheddar snacks .5 oz. Bag 44 percent
Reese’s Pieces/Whoppers 4/5 oz. Box 29/41 percent
Wise potato chips 6.75/7 oz. Bag 67 percent

Among the slack-fill cases that have been dismissed was one against the marketers of Mini Oreo and Mini Chips Ahoy! Go-Paks, which alleged that 25 percent or more of the opaque packages containing the cookies was empty space. In dismissing the case, a federal judge wrote:

No reasonable consumer expects the overall size of the packaging to reflect precisely the quantity of product contained therein.

That may be true but there’s no denying that consumers expect the size of the container to have some type of correlation to the amount of chips, candy, cookies, etc., inside. And a bag of Wise potato chips that is only one-third full is far from being in the ballpark of what a reasonable consumer might expect to get from the bag.

But the Mini Oreo/Mini Chips Ahoy! Go-Paks case does offer some guidance for shoppers. That’s because in dismissing the lawsuit the federal judge found that product labels on the outside carrying the net weight and the number of cookies inside were enough to prevent consumer deception.

So does size matter? Perhaps not as much as the information on the label. Next time you’re at the grocery store check the label for things like net weight and serving size to avoid the disappointment that comes with opening a slack-filled package.

Find more of our coverage on slack-filled packaging here.

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