Splitting Headaches for Slack-Fill Plaintiffs

“Take two Advil® and don’t call me in the morning.” That might be the “prescription” that lawyers at a New York plaintiffs’ firm gave to their clients after reviewing an October 18, 2016, decision by Senior District Court Judge Sterling Johnson, Jr. dismissing a nationwide slack-fill class action lawsuit brought in federal court in Brooklyn.   Slack-fill is the volume of non-functional empty space in the packaging of a product.  See 21 C.F.R. §100.100.  The lawsuit alleged that Pfizer, Inc. (“Pfizer”) violated New York, Florida, and California consumer protection laws by tricking people into purchasing its over-the-counter Advil® pain relief product based on its packaging of Advil® in containers with excessive slack-fill. 

In Fermin v. Pfizer, Inc., the plaintiffs alleged that Pfizer’s packaging of Advil® was comparatively too large in relation to the volume of the pills it contained.  The District Court had little trouble dismissing the case, noting that it is “impossible to view the products without also reading the total number of pills contained in each package.”  Opinion, at 5.  The judge rejected the plaintiffs’ claim that they expected the entire volume of the packaging would be filled to capacity, concluding it would defy logic to accept that a reasonable consumer would ignore the stated pill count.   Judge Johnson also found federal jurisdiction to be lacking under the Class Action Fairness Act because the plaintiffs failed to establish that they sustained any damages whatsoever.  “Plaintiffs received exactly what they paid for and suffered no loss.”

In recent years, a sizable number of cases alleging consumers have been misled by food and drug manufacturers whose products’ packaging contains too much slack-fill have been filed in federal courts across the country.  Few of these cases have been dismissed with prejudice and it is quite rare for a federal judge to conclude that a plaintiff’s claims do not pass the “proverbial laugh test,” and are “unreasonable as a matter of law.” Id.

Although one would hope that Judge Johnson’s common-sense decision will cause plaintiffs’ attorneys to think twice before filing these seemingly frivolous slack-fill lawsuits, the headaches will likely continue for manufacturers and retailers for the foreseeable future.   For example, a lawsuit was recently filed in state court in Poughkeepsie, New York, by Anna Wurtzburger against Kentucky Fried Chicken based upon the fried chicken chain’s alleged failure to fill up an eight piece bucket of chicken as much as the overflowing one seen in KFC’s television advertising.  The curiously-named (for a case against a chicken purveyor) plaintiff paid twenty dollars for her allegedly under-filled bucket, but is seeking a whopping $20 million in damages based on KFC’s allegedly false and deceptive trade practices.  The case was recently removed to federal court and it appears doubtful that the thinly-drafted complaint will survive a motion to dismiss.   Ms. Wurtzburger would therefore be well-advised to wait before counting those chickens.

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