Optimum Nutrition Essential Energy Excessive Slack Fill Class Action

Glanbia Performance Nutrition (Manufacturing), Inc. makes different sizes and varieties of its Optimum Nutrition Essential Energy products. They come in opaque containers, and the complaint for this class action alleges that the cans are underfilled, causing, it says, “unsuspecting consumers across America to pay premium prices for empty space.”

The class for this action is all persons who bought the product in the US for personal use and not for resale, between August 19, 2018 and the present.

Page 2 of the complaint shows an image of the outside of the product. The following page shows an image of the open product, looking down into the can, which the complaint claims “shows that the Product packaging is more than 60% empty.”

There is nothing on the front of the can, the complaint alleges, that would tell consumers that the packaging contains a significant amount of slack fill. The complaint alleges that Glanbia “underfills the Product to save money (by not filling the containers) and to deceive consumers into purchasing the Product over its competitors’ products.” The complaint claims this harms both its customers and its competitors.

The complaint alleges, “Research has demonstrated that packages that seem larger are more likely to be purchased because consumers expect package size to accurately represent the quantity of the good being purchased.”

The complaint defines slack fill as “the difference between the actual capacity of a container and the volume of product contained therein.” Slack fill is nonfunctional when it exists without a particular purpose or, the complaint says, “for illegitimate or unlawful reasons.” The Code of Federal Regulations says that “a food shall be deemed to be misbranded if its container is so made, formed, or filled as to be misleading.”

Slack fill may be functional. The law permits a number of exceptions to the requirement that containers be filled roughly to their capacity:

• The extra space is left in the container to protect the contents.
• The machines used to package the product require the extra room.
• Settling takes place during shipping and handling.
• The packaging performs a particular function that requires the extra space, where this is inherent to the nature of the food and clearly communicated to consumers.
• The container is reusable and has significant value.
• There is an inability to increase the fill or decrease the container size, such as to accommodate labeling or discourage pilfering.

According to the complaint, none of these “safe harbors” applies to the products in question. It therefore asserts, “The product is made, formed, and filled so as to be misleading. The Product is, therefore, misbranded.”

Article Type: Lawsuit
Topic: Consumer
Tags: Deceptive Advertising, Deceptive Packaging, Excessive Slack Fill