Judges Not Eating Up Class-Action Food Lawsuits

Lawyers look to cash in for the silliest of reasons.


Potato chips
Robert Byron /

Last week, a federal court in Chicago dismissed a class-action lawsuit against local candy maker Fannie May. The suit alleged Fannie May had sold boxes of candies that just weren't full enough, and that the candy maker had underfilled the larger boxes "to trick potential consumers into believing they were receiving more candy than they really were."

The plaintiffs, Judge Sara Ellis of the District Court for the Northern District of Illinois wrote in her decision dismissing the case, "were saddened to discover upon opening their boxes of Mint Meltaways and Pixies that the boxes were not brimming with delectable goodies. Rather, the boxes were filled merely two-thirds of the way to their brims, leaving [the plaintiffs] twenty-four-cubic-inches or more short of satisfaction."

Anyone who's ever opened a bag of chips to find far more oddly chip-scented air than actual chips has experienced the shortness of satisfaction of which Judge Ellis writes. The phenomenon even has a name: "slack fill."

"Slack-fill is the difference between the actual capacity of a container and the volume of product contained therein," FDA rules state.

According to those same rules, slack fill constitutes misbranding—fraudulent labeling—when consumers can't see all of a container's contents and the slack fill exists for no permissible functional reason—such as protecting a container's contents or, in the case of a food such as chips, if the product settles after production.

Even if the two plaintiffs in the Fannie May case were somehow misled by the company's slack fill, why in heaven's name would this constitute a class-action lawsuit—a suit brought by a members of a class of consumers on behalf of all those consumers—rather than just a lawsuit filed on behalf of one or more of named plaintiffs?

Lawyers—greedy lawyers—is the easy answer. A lawyer who brings suit on behalf of one client who bought an $10 box of candy can likely expect to earn very little from the litigation's outcome. But turn that client into the face of a class of, say, a million consumers who each may have bought an $10 box of candy, and suddenly the stakes (and the lawyer's potential payoff) rise dramatically.

That may be all there is to this and other recent slack-fill suits. But slack-fill lawsuits like these are just the tip of the iceberg in a sea of class-action litigation. They're also an example of this fact: Class-action lawsuits against food companies are booming.

A recent Institute for Legal Reform report, which takes a dim view of class-action food litigation, indicates class-action lawsuits targeting food marketing have grown exponentially—from a mere twenty in 2008 to more than 400 active cases in 2016.

Two other recent Illinois class-action food lawsuits illustrate this fact. One, which I wrote about last fall, pertains to whether or not packages of Starburst, made by Chicago's Wrigley, misstate the number of calories in one of the candies.

The other (and more notorious) case concerns whether sandwich maker Subway's footlong subs are really one foot long. The issue first arose in 2013, when an Australian teen snapped a photo of his Subway sandwich next to a ruler, showing the sub came in closer to eleven inches. Soon, an aggrieved Subway customer sued the company, alleging the "footlong" claims had defrauded them.

The class-action lawsuit against Subway seemed doomed from the start. As I wrote in 2013, "dictionaries define the word 'footlong' not as 'exactly 12.00 inches' but, rather, as 'approximately one foot in length.'" In my estimation, a reasonable consumer would agree that eleven inches or thirteen inches is approximately one foot. Case closed, right?

But Subway had already issued what may be the dumbest press release in history. "Our commitment remains steadfast to ensure that every SUBWAY Footlong sandwich is 12 inches at each location worldwide," it reads in part.

So much seeking shelter in the definition of "footlong." Subway ultimately settled the case, though a judge threw out the settlement last year, labeling it "'utterly worthless' to the average Subway customer" and "'no better than a racket' because only the lawyers benefit."

Judges have indeed been skeptical of most class-action food lawsuits.

"Federal judges in Chicago recently have been taking a skeptical view of class-action lawsuits over allegedly misleading food claims," noted a Chicago Tribune article on the Starburst lawsuit.

Amid the backdrop of lawsuits, I'll sit on a panel on class-action food litigation at a Loyola Law School conference in Chicago next week. The symposium, Class Action Effectiveness as a Consumer Protection Tool, is sponsored by the Loyola Consumer Law Review. My panel—where I'll join Loyola Prof. Jim Morsch, who teaches a course there on class actions—focuses on class-action litigation against food producers and sellers.

As someone who believes there are far too many frivolous lawsuits filed against food companies, I welcome judges' skepticism. That said, not all class-action lawsuits against food companies are frivolous. Some indeed have merit. But which ones? And how should courts decide? That's something I plan to unpack in my remarks next week, and flesh out in more detail in my Loyola Consumer Law Review article in the fall.