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Complex Litigation | MONDAY, MAY 22, 2017 | S3
Slack Fill: Is This Deception Or Just a Bunch of Air?
BY MEGHANA SHAH
AND MELISSA CONRAD-ALAM
This question is popping up in federal and state courts around the country, as plaintiffs’ lawyers seek class action status for claims that the empty space in food and beverage containers, referred to as “slack ll,” is misleading and deceptive to consum- ers. These purported class representatives allege that manufacturers deceive consumers by including more empty space in their pack- aging than the Food and Drug Administration (FDA) regulations allow. While the federal laws and regulations provide no private right of action, plaintiffs in these actions allege that violations of the FDA slack ll regulations are evidence of violations of state consumer pro- tection and deceptive advertising laws.
Early slack ll complaints have been met with resistance. Courts have dismissed many complaints out of hand for failure to plead a cognizable claim or for failure to meet the Twombly/Iqbal plausibility standards for pleading. As a result, the allegations in the complaints are becoming increasingly detailed and complex. As the urry of suits continues, the question remains: Are these allegations just a bunch of air?
Slack Fill: Current Regulations
Since the 1930s, Congress has empowered the FDA to regulate how food and drugs are manufactured, advertised and sold to the pub- lic. In the 1990s, Congress passed the Nutri- tion Labeling and Education Act (NLEA) giving the FDA the authority to mandate nutrition labeling for most foods. The NLEA makes it unlawful for a food or beverage manufacturer to place food in containers “so made, formed, or lled as to be misleading.” 21 U.S.C. §343(d) (emphasis added). It is this standard that lies at the heart of a slack ll claim.
The FDA regulates this misbranding of products under 21 CFR §100.100. Per this regulation, a container is lled in an unlawfully misleading manner if it contains “nonfunc- tional slack ll.” The regulation de nes slack ll as “the difference between » Page S14
MEGHANA SHAH is a partner at Eversheds Suther- land (US) in New York. MELISSA CONRAD-ALAM is an associate in the firm’s Atlanta office.
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Complex Litigation
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