- Food, Beverage and Agribusiness
- Cosmetics and Personal Care Products
- Pharmaceutical and Medical Device
The article summarizes the litigation landscape, including existing putative class actions challenging potato chip, eye drop and deodorant packaging, and notes that plaintiffs usually allege some combination of misrepresentation, fraud, unjust enrichment, breach of warranties and consumer-protection statutory claims. Muehlberger and Kennedy offer ideas for minimizing slack-fill litigation risk, including considering safe-harbor protections, maintaining design and complaint records and adding elements to packaging to display the product's contents.
After litigation is filed, companies have a variety of litigation strategies available to them, including challenging standing, narrowing claims or offering refunds before class certification, Muehlberger and Kennedy suggest. Ultimately, they conclude, "plaintiffs' slack-fill complaints often contain more air than substance once cracked open, and by following these strategies manufacturers should be able to effectively limit their exposure to this emerging litigation arena."