Judges Not Eating Up Class-Action Food Lawsuits

Lawyers look to cash in for the silliest of reasons.


Potato chips
Robert Byron / Dreamstime.com

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.

NEXT: Fearful Frenzy in a World of Unlikely Doom

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  1. Outlaw contingency fees, non-disclosure clauses, and out of court settlements and the problem disappears.
    Lawyers who take what are now contingency fee cases could be awarded payment by the court based on actual effort, not some massive percentage of any award.
    If the 'public' courts are used to enforce private commercial agreements, the public has a right to know what the process and out come were.
    Threatening to go to trial is now mostly a negotiating tool for lawyers. Once a case is filed, it should have to go to a judge's conclusion. This would stop a lot of frivolous cases that are filed just to get an insurance company to cough up some coin.

    1. Do you realize how many lawyers would become unemployed if your proposal were adopted by the justice system? How many law schools would have to close? How many ambulances would no longer be chased? Stop the madness!

      1. "Do you realize how many lawyers would become unemployed if your proposal were adopted by the justice system?"

        That's a feature, not a bug.

      2. Do you realize how many lawyers would become unemployed if your proposal were adopted by the justice system? How many law schools would have to close? How many ambulances would no longer be chased?

        Yes. Yes, I do.

      3. Everyone must retain a lawyer or pay a penaltax.

      4. What's the downside?


    2. Why don't you outlaw plea bargaining on the criminal side, while you're at it.

      1. Too many laws, hence too many crimes, hence too many prosecutions to resolve with trials...gee, it's as if you're hostile to the whole system.

      2. Correct me if I am wrong but isn't plea bargaining not allowed in many countries? I don't see how it serves the publicinterest and seems wide open to misuse.

      3. Well, in criminal cases, sure. I tried to limit my ranting to the civil cases described.

    3. Add loser-pays and I'm all in. Excellent suggestions.

      1. Right, his proposal as it is would result in more stupid but not quite sanctionable suits by underemployed lawyers

  2. "an Australian teen snapped a photo of his Subway sandwich next to a ruler, showing the sub came in closer to eleven inches....

    "'Our commitment remains steadfast to ensure that every SUBWAY Footlong sandwich is 12 inches at each location worldwide'"

    1. I would have paid good money to see Subway tweet a picture of their footlong next to the bare foot of one of their employees as a rebuttal.

      1. That would work in the metric system Bandana Republics

      2. Perhaps they hire Ron Jeremy as their next spokesman. Can't be as creepy as Jarrod.

  3. One advantage (the only advantage I know of) of English law over American law is that English law allows private criminal prosecutions. If those were allowed in America, concerned citizens could prosecute food companies that engage in fraud or adulteration, etc. of their products...if the behavior falls short of criminality then a concerned citizen could do an "opt in" class action, where the court notifies the public that, hey, if you bought an underfulled bag of chips and want your money back, just sign a form and get your four bucks or whatever.

    1. Well, sign a form and send in the receipt or the bag to prove you bought the chips.

    2. Some see the "loser pays" aspect of the English system as an advantage.

    3. Unfortunately I could see more neighbor disputes (especially HOAs) and others becoming criminal prosecutions instead of civil actions.

  4. Mexico is undermining our most cherished culinary norms and corrupting the blood of our youth. They are trying to destroy America from the inside, by making us lose faith in our vaunted institutions and question all that is right and good. We need a class action against them. Or at least build the fucking wall already.

  5. Speaking of Subway, the new egg-cheese-Turkey breakfast croissant is pretty good. Has anyone tried it? I got it with American, spinach, tomato, mayo and s/p. How to kick it up a notch? Swiss, Russian, mustard?

    1. I liked Subway's Rueben while they had it, they use a good sharp sauerkraut. Not as good as homemade or what you'd get at a good deli if you're within driving distance of one, but not bad.

      Speaking of which, I had to take my nephew to the doctor for an anal probe yesterday and afterward we ran into the Arby's 2 doors down. He was starving since he hadn't had anything to eat for 36 hours and I hadn't been in an Arby's in years, so I thought why not. Then I remembered why I hadn't been in an Arby for years - 28 fucking dollars for lunch for the two of us. Sure, it was a big lunch but when there's an all-you-can-eat buffet just up the road for $12.95, Arby's can eat shit. I knew better than to order their Rueben and should have known better than to order their Cuban but thought I'd give it a try - it's as bad an imitation of the real thing as their Rueben.

      1. So, to summarize, yesterday you and your nephew both took it up the chute.

        1. They really need an upvote button as this comment so richly deserves to be recognized!

  6. Look, if Ghawd hadn't meant lawyers to flim-flam suckers, She wouldn't have made them so numerous. Besides, roughly half of the looter kleptocracy politicians in Congress started out (in the pupa stage) as pettifogging lawyers. How else is a crook supposed to raise a stake to run for orifice?

    1. Knee pads are a good start - - - - - - - -

  7. One very good reason companies use slack filling for is to get noticed on the shelf. There are 100 kinds of candy or chips on the shelf. If you buy a product and think you were deceived, here is a tip: don't buy it again. I think the rule should be that if the plaintiffs win, they get the actual damages, say $1 on a $3 box of candy. That's it.

    1. If the mass or product volume is labeled on the package then they need to learn to read.

      1. And it IS on the label since that IS required by law.

    2. In a typical class action settlement, $1 on a $3 box of candy is exactly what plaintiffs would get. And the law firm would collect $2-3 million in fees and costs.

  8. "such as protecting a container's contents or, in the case of a food such as chips, if the product settles after production."

    Actually, slack fill in chip bags is not just the result of settling. The bags are deliberately slack filled and then inflated with air before being sealed to protect the chips from being crushed in shipping.

    1. Not to mention that they are labeled according to weight or volume of the product not the container.

  9. "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"

    Just more proof that the law is an ass. Also by law, all packaged food products must be labeled by weight, so how can slack fill possibly be deceptive.

    1. And we do not forget the labeling laws that give cost per something for easy comparison shopping. I great big bag with six ounces of product will be identified the same a a smaller bag with six ounces of product. So the lawsuit actually should be against the government for not doing it's job properly?

      1. All the markets I go to list a price/oz. for *whatever*, which should be good enough to cover all the people too stupid to do simple math in their heads or using the calculator on their cellphone. I guess this leaves out the people who can't read, but you can't have everything.

        1. After McDonalds had their hit product with the quarter pounder another food place tried to compete with a 1/3 pounder but it didn't sell. Then McDonalds made what is now the "double quarter pounder". They found out that people thought "half pounder" or "third pounder" was less than "quarter pounder". Because 4 is a bigger number or something.

  10. The problem is to many lawyers.

    1. and too few o's

  11. "twenty-four-cubic-inches or more short of satisfaction" was my nickname in college.

  12. Not a food lawsuit -- but about a year ago I received a postcard that said I was a beneficiary in a class action lawsuit against an antivirus software company (McAafee I think but not sure). According to the postcard, the law firm collected about $2+ million in fees and costs and I could go to a website and claim a $12.00 discount if I wanted to buy the software again.

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