Shook Attorneys Explore Slack-Fill Litigation for Law360

Shook Partner Jim Muehlberger and Associate Iain Kennedy
have co-authored an article for Law360 about slack-fill regulation and
litigation. They note that although some product packaging uses unused
space within a bottle or bag for functional purposes—transportation or
theft protection, for example—companies have increasingly been targeted
for litigation under the Fair Packaging and Labeling Act or U.S. Food and
Drug Administration regulations. “All of the legitimate explanations in
the world have not deterred some in the plaintiffs’ bar, who have seized
upon slack-fill litigation as the newest product packaging and labeling
class action du jour,” Muehlberger and Kennedy write.

The article summarizes the litigation landscape, including existing
putative class actions challenging potato chip, eye drop and deodorant
packaging, and notes that plaintiffs usually allege some combination
of misrepresentation, fraud, unjust enrichment, breach of warranties
and consumer-protection statutory claims. Muehlberger and Kennedy
offer ideas for minimizing slack-fill litigation risk, including considering
safe-harbor protections, maintaining design and complaint records and
adding elements to packaging to display the product’s contents.

Issue 574