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

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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