Ancient Nutrition Protein Powder Product Has Excessive Slack Fill Class Action

Ancient Brands, LLC sells a popular line of protein powders, in different flavors, sizes and varieties. They are packaged in opaque cans, so that consumers cannot visually check the amount of powder in the can until they have taken the product home and opened it. The complaint for this class action alleges that the cans are more than half empty. The complaint alleges that Ancient Brands “dupes unsuspecting consumers across America to pay premium prices for empty space.”

The class for this action is all persons who bought the protein powder products in the US, or alternatively, in California, for personal use and not for resale, between April 8, 2022 and the present.

The complaint defines slack fill as “the difference between the actual capacity of a container and the volume of product contained therein.” According to the complaint, the containers do not have any indication of the amount of powder contained in them, such as a fill line, and consumers cannot meaningfully visualize the amount of product from the net weight. The complaint alleges that the size of the containers leads consumers to believe they’re getting more product than they are.

California and federal law do not permit manufacturers to leave excessive slack fill in containers. The complaint quotes the Code of Federal Regulations (CFR) as saying that “a food shall be deemed to be misbranded if its container is so made, formed, or filled as to be misleading.” Opaque containers, the regulations say, should not contain nonfunctional slack fill.

However, the CFR does permit slack fill in certain circumstances when it has a function:

• It may be used to protect the contents.
• The machines used for packaging the product would be affected if the product contained more.
• It may be caused by settling during shipping and handling.
• It may be used for a certain function “inherent to the nature of the food and is clearly communicated to consumers.”
• It may be used if the container can be reused and is of value by itself.
• It may be used if decreasing the container size would be a problem, for example, to accommodate the necessary labeling or to prevent pilfering.

The complaint alleges that none of the above conditions applies to the slack fill in the protein powder product. It claims that the container’s size leads consumers to expect a corresponding amount of powder, “when, in reality, what he or she actually receives is less than half of what is represented by the size of the container.”

Article Type: Lawsuit
Topic: Consumer
Tags: Deceptive Advertising, Excessive Slack Fill, Fraud, Negligent Misrepresentation