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Seventh Circuit Lets The Air Out Of Another “Slack Fill” Claim

This blog has previously examined the recent spate of so-called “slack-fill” lawsuits, in which consumers claim that a food (or other) product is misleadingly packaged because it contains excess air.  We noted that the growing trend is for courts to reject such suits at the motion-to-dismiss stage, for a variety of reasons.  For example, courts have found slack-fill complaints deficient for failing to allege, beyond conclusory platitudes, that the package’s empty space serves no legitimate function, or for failing to allege with plausibility that a reasonable consumer would actually be deceived.  Late last year, in Benson v. Fannie May Confections Brands, Inc., the U.S. Court of Appeals for the Seventh Circuit issued an important decision affirming the pleadings-stage dismissal of a slack-fill suit, but based on a distinct justification: the failure to plausibly allege any cognizable damages associated with slack-filled packaging.

The District Court Decision

In Benson, plaintiffs Clarisha Benson and Lorenzo Smith alleged that they purchased Mint Meltaways and Pixies candies from stores owned by Defendant Fannie May.  See Am. Compl., No. 17-cv-3519, ECF No. 36.  Allegedly, the packages of the two products were about two-thirds filled:


The plaintiffs asserted that just a “fraction” of the packages’ empty space “serves the functional purpose of protecting the contents of the box,” and that the “total slack-fill” therefore “unreasonably exceeds the amount necessary to achieve such an objective.”  Id.  The plaintiffs claimed that they “reasonably relied … on the Product packaging’s implicit representations of quantity and volume” in choosing to purchase, and that as a result, they were “financially injured” and “depriv[ed] of the benefit of [their] bargain.”  Id.  The plaintiffs brought putative class claims under Illinois’ Consumer Fraud and Deceptive Business Practices Act (ICFA), for unjust enrichment, and for breach of implied contract.  Id.

The district court granted Fannie May’s motion to dismiss due to the complaint’s failure to allege with sufficient plausibility that any slack-fill was “nonfunctional”—one of the well-recognized pleading defects we summarized previously.  2018 U.S. Dist. LEXIS 207658 (N.D. Ill. Dec. 10, 2018).  Again, FDA regulations provide that slack-fill may cause a food container to be “misleading” only if its presence is not attributable to one of six functional reasons (e.g., protecting the package’s contents).  21 C.F.R. § 100.100(a).  Because the federal Food, Drug, and Cosmetic Act (FDCA) expressly preempts state-law packaging requirements that differ from federal ones, a state-law slack-fill suit cannot succeed unless this nonfunctionality requirement is met.  Benson, 2018 U.S. Dist. LEXIS 207658, at *4-5.

The district court observed that, in their initial complaint, the plaintiffs’ only attempt to plead nonfunctionality was a “barebones statement that the slack-fill was in excess of the amount necessary to achieve” any of the six permissible functions.  Id. at *7-8.  In their amended complaint, the plaintiffs attempted to bolster this allegation by comparing the amount of empty space in 7-ounce and 14-ounce packages.  Id.  Specifically, the plaintiffs pointed out that the 14-ounce package contains less airspace, as a percentage of its total volume, than the 7-ounce package.  In the plaintiffs’ view, this was enough to raise a plausible inference that the empty space in the 7-ounce packages had to be “nonfunctional.”  Id.