Muehlberger and Kennedy Explore Slack-Fill Litigation for Law360

Shook Partner Jim Muehlberger and Associate Iain Kennedy have authored an article for Law360 on slack-fill regulation and litigation. They note that although some product packaging uses unused space within a bottle or bag for functional purposes—transportation or theft protection, for example—companies have increasingly been targeted for litigation under the Fair Packaging and Labeling Act or U.S. Food and Drug Administration regulations. "All of the legitimate  explanations in the world have not deterred some in the plaintiffs' bar, who have seized upon slack-fill litigation as the newest product packaging and labeling class action du jour," Muehlberger and Kennedy write.

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."