A California consumer has filed a putative class action against Safeway Inc. alleging the grocery retailer’s tuna cans are under-filled by 10 to 20 percent based on federally mandated fill standards. Soto v. Safeway Inc., No. 15-5078 (N.D. Cal., filed November 5, 2015). The plaintiff contends that U.S. National Oceanic and Atmospheric Administration (NOAA) testing indicates Safeway’s 5-ounce tuna cans contain an average of 2.29 ounces of pressed cake tuna despite federal standards requiring cans of that size to contain at least 2.84 ounces of product. This result was consistent across 97.9 percent (94 of 96) of the tuna cans analyzed, according to the complaint. The plaintiff alleges breach of warranties, fraud, unjust enrichment, negligent misrepresentation and violations of California’s consumer protection statutes, and he seeks class certification, compensatory and punitive damages, an injunction and attorney’s fees. Issue 584
Tag Archives slack-fill
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…
A group of consumers has filed a putative class action against Perfetti Van Melle USA alleging that the packaging of its Mentos® sugar-free gum contains non-functional slack fill, which amounts to unfair business practices. Hu v. Perfetti Van Melle USA Inc., No. 15-3742 (E.D.N.Y., filed June 26, 2015). The gum is sold as packages of 50 in non-transparent tubes designed to fit into a car’s cup-holder. The complaint alleges that the height of the tube is unnecessary because it could hold approximately 70 pieces of Mentos® gum—leaving the 50 pieces to fill just 71 percent of the tube’s capacity. The 50-piece product’s packaging was “designed by Defendant to give the impression that there is more content than actually packaged,” the complaint asserts, noting that a 15-piece Mentos® gum product does use transparent packaging. The complaint lists two named plaintiffs, residents of New York and California, along with four John Doe…
Echoing a lawsuit brought a week earlier by a competitor in the pepper category, a consumer has filed a proposed class action against McCormick & Co. alleging that the company underfills its tins of black pepper because it reduced the pepper in each tin by 25 percent but retained the traditional packaging size. Dupler v. McCormick & Co., No. 15-3454 (E.D.N.Y., filed June 15, 2015). Facing rising prices for black pepper, the complaint argues, McCormick has begun selling 1.5-ounce, 3-ounce and 6-ounce pepper products in place of its 2-ounce, 4-ounce and 8-ounce products, respectively, but continues to use the larger “iconic” packaging it used for decades. This “slack fill” violates the Food, Drug, and Cosmetic Act, the plaintiff argues, and she seeks to represent a New York class in an action for damages, an injunction and attorney’s fees. The unfair-competition suit against McCormick alleging violations of the Lanham Act and…
Watkins Inc., a Minnesota-based company known for its black pepper, has filed a lawsuit against McCormick and Co., Inc., a global purveyor of spices, alleging that McCormick recently began underfilling its pepper containers but continued using the same size of packaging. Watkins Inc. v. McCormick and Co., No. 15-2688 (D. Minn., filed June 9, 2015). The complaint provides photographic comparisons of Watkins and McCormick tins, a photo of McCormick’s 2-ounce tin alongside the 1.5-ounce tin in a store selling each for the same price, and several photos of stores with shelf tags incorrectly listing the previous size but offering the reduced-size product. “McCormick intentionally kept the tin the same size, with the same price, notwithstanding the 25% decrease in ground black pepper fill, in a manner that misleads retailers and consumers,” the complaint asserts. Watkins alleges that McCormick has violated the Lanham Act and several state business practices acts as…
StarKist Co. and a class of consumers have filed a proposed settlement agreement for $12 million in a case alleging that the company underfilled its cans of tuna. Hendricks v. StarKist Co., No. 13-0729 (N.D. Cal., motion filed May 14, 2015). Under the agreement, StarKist will pay $8 million in $25 cash increments and provide $4 million in $50 vouchers for StarKist-branded products. The agreement indicates that “tens of millions of purchasers” are members of the class but predicts that “a claim rate of more than 5% will be difficult to achieve.” Thus, the amounts of the settlement allow for 80,000 voucher claims and 120,000 cash claims. “This is an excellent result for class members compared to their likely recovery should they prevail at trial,” the agreement stipulates. Issue 566
A federal court in California has dismissed with prejudice the breach of warranty claims made by a putative class as to purportedly “misbranded food products” sold by 7-Eleven, but dismissed the remaining consumer fraud claims without prejudice to allow the plaintiff to amend the complaint to meet the stringent pleading requirements for fraud-based allegations. Bishop v. 7-Eleven, Inc., No. 12-2621 (N.D. Cal., order entered August 5, 2013). While the plaintiff defined “misbranded food products” as pertaining to potato chips, pretzels and other foods labeled “0 grams Trans Fat,” “No Cholesterol,” “All Natural,” “Fresh to Go,” “guaranteed fresh,” or “Fresh,” as well as products “sold in oversized slack filled container,” the court determined that he failed to “provide a clear and particular account of the allegedly fraudulent, deceptive, misrepresentative, or otherwise unlawful statements” and failed to “unambiguously specify the particular products that have violated particular labeling requirements, the allegedly unlawful representations that…
The day after district attorneys for three California counties filed a lawsuit against tuna producers alleging that they make quantity misrepresentations “by failing to meet the standard of identity for canned tuna products seasoned or flavored with broth, as defined in the Code of Federal Regulations,” it was announced that a $3.3 million settlement had been reached. California v. Bumble Bee Foods, LLC, No. 12-11729 (Cal. Super. Ct., filed August 2, 2012). According to the San Diego County district attorney, a California Department of Food and Agriculture (CDFA) investigation discovered that the companies “failed to meet the required amount of tuna in cans packed with vegetable broth and added flavors.” Under the terms of the agreement and without admitting liability, each company will provide $300,000 in canned tuna to California food banks, and costs and penalties will be divided among the counties with each receiving $969,500. CDFA will be paid investigative…
The Center for Science in the Public Interest (CSPI) is urging the Food and Drug Administration and state attorneys general to crack down on “slack fill” in food packages. Industry apparently defines slack fill as the difference between the capacity of a container and the volume of product inside. The federal government’s existing regulations are intended to restrict slack fill to situations in which some air in packaging actually helps protect the contents or where some product settling makes slack fill unavoidable. According to CSPI, excessive “nonfunctional” slack fill is illegal, and food manufacturers and their regulators don’t seem “overly concerned” with enforcing the regulations. “It would be disheartening, even shocking, if it weren’t so commonplace,” CSPI Executive Director Michael Jacobson was quoted as saying. “But as consumers, we’ve almost come to expect that our food packages will be half full of food and half full of air.” See CSPI…
