CATrends: Empty Space in Consumer Goods

Not only is it annoying to open a bag of trail mix – or whatever your favorite snack might be – and find the bag half empty, it may be against the law.

Companies selling consumer goods legally cannot underfill packages unless the empty space serves a purpose – for example, if it provides protection for the hidden contents inside – or meets other criteria established by the FDA so as not to be deemed nonfunctional slack-fill.

By contrast, a new wave of class-action lawsuits accuses a number of brands of underfilling products for “no lawful reason.”

For example, a lawsuit filed against Target in July over its Good & Gather freeze-dried peach slices, which according to the complaint comes in a package that is over half empty, alleges:

Defendant markets the Product in a systematically misleading manner by representing it as adequately filled when, in fact, it contains an unlawful amount of empty space or “slack-fill.”

The lawsuit adds that the front packaging “does not include any information that would reasonably apprise [consumers] of the quantity of product relative to the size of the container, such as a fill line.”

The same California law firm that is suing Target has also in recent months filed slack-fill complaints against PepsiCo regarding its Popcorners snack (which allegedly contains over half empty space); Gourmet Nut concerning its Premium Trail Mix Protein Mix (almost half empty space); and Zuru over its Monday Moisture + Hyaluronic Acid shampoo (25% empty space); among others. The lawsuits are all pending.

Earlier this year, another California law firm sued the marketers of Crunchies freeze-dried fruits and Safe + Fair Birthday Cake granola for allegedly deceptively using slack-filled packages. Both of those cases were voluntarily dismissed, the reasons for which were not disclosed.

The lawsuit against Target notes that the average consumer only spends 13 seconds deciding whether to make an in-store purchase and is heavily reliant on the size of a product’s packaging.

Find more of our coverage on slack-fill.