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From Health Law Daily, January 7, 2019

Empty space in chip bags not deceptive under New York law

By Jeffrey H. Brochin, J.D.

A federal district court in New York has dismissed a putative class action lawsuit filed by a consumer of tortilla chips against a snack food manufacturer due to lack of subject matter jurisdiction. The consumer’s mere conclusory statements in her complaint failed to properly allege that the slack fill in a tortilla chip bag was non-functional. Additionally, her admission that she was no longer likely to purchase the product once she knew of its allegedly deceptive packaging meant that she would not be injured in the future—a requisite element for injunctive relief (Morrison v. Barcel USA, Inc., January 2, 2019, Briccetti, V.).

Too much air—too few chips. A consumer alleged that she purchased two bags of Takis Rolled Tortilla Chips—one "Zombie" flavored and one Guacamole flavored—and that the bags contained too much air and too few chips, thus making it appear to consumers that they were buying more chips than were actually being sold. She filed a putative class action against manufacturer Barcel USA, LLC, for alleged violations of New York General Business Law (GBL) Sections 349 and 350, and for common law fraud. She sought injective relief enjoining the company from packaging the chips with non-functional slack fill (unnecessary empty space). The company argued that the consumer lacked standing to seek injunctive relief under GBL Section 349 because she did not plausibly allege a risk of future injury.

Non-functional slack fill. GBL Sections 349 and 350 prohibit deceptive acts or practices and false advertising in the conduct of any business, trade or commerce or in the furnishing of any service. To state a claim under either section, a consumer must allege that a manufacturer has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) the consumer suffered injury as a result of the allegedly deceptive act or practice.

The GBL has been interpreted to allow for claims for excessive slack fill, which has been defined as the difference between the actual capacity of a container and the volume of product contained therein. However, a consumer must sufficiently allege that the slack fill is non-functional: New York’s GBL does not itself contain safe harbors for functional slack-fill, however, it does create a complete defense in cases where the act or practice is subject to and complies with the rules and regulations of, and the statutes administered by any official agency of the United States.

Functional purposes for slack fill. The federal Food, Drug and Cosmetic Act, (FDC Act) and its implementing regulations outline six functional purposes for using slack fill: (i) the protection of the contents of the package; (ii) the requirements of the machines used to enclose the contents in the package; (iii) settling during shipping and handling;( iv) the need for the package to perform a specific function; (v) the food is packaged in a reusable container with empty space as part of the presentation of the food; or (vi) inability to increase the fill level or reduce the package size because, for example, the size is necessary to accommodate food labeling requirements or discourage theft. Wholly conclusory allegations that slack fill is non-functional are insufficient to state a nonfunctional slack fill claim.

Competitor comparison not accepted. Although the consumer did not allege any facts supporting the allegation that the slack fill was non-functional, she did allege that the slack fill in the chip bags—approximately 59 percent—was significantly greater than the amount of slack fill in its competitor’s allegedly similarly sized Doritos bag, which contained approximately 43 percent slack fill. Therefore, according to the consumer, some of the slack fill in the tortilla chip bags must have been non-functional. The court rejected that approach noting that no Second Circuit authority was cited for relying on a comparison of similar products to uphold a claim for non-functional slack fill. In addition, the FDA guidance was found to be inconsistent with that approach.

Even assuming that comparing similar products was a permissible means for alleging non-functional slack fill, the court found that the consumer failed to sufficiently allege that the tortilla chip bags and Doritos bag were similar, rather, the consumer alleged more differences than similarities regarding the height, width, and weight of the respective bags. The consumer also failed to allege whether the ingredients, surfaces, or size of the chips were similar.

For the foregoing reasons, the manufacturer’s motion to dismiss the consumer’s claims under GBL Sections 349 and 350 and for common law fraud was granted.

The case is No. 7:18-cv-00531-VB.

Attorneys: Anne Melissa Seelig (Lee Litigation Group, PLLC) for Aurora Morrison. Thomas E. Fox (Skadden, Arps, Slate, Meagher & Flom LLP) for Barcel USA, LLC.

Companies: Barcel USA, LLC

MainStory: TopStory CaseDecisions FDCActNews AdvertisingNews FoodNews FoodStandardsNews LabelingNews NewYorkNews

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