The Seventh Circuit affirmed an Illinois federal court’s decision to dismiss a proposed slack-fill class action against Chicago-based chocolate maker, Fannie May. In December 2018, the district court ruled that the plaintiffs, Clarisha Benson and Lorenzo Smith, failed to adequately plead a violation of the Federal Food, Drug, and Cosmetic Act. And on December 9, the Seventh Circuit affirmed the district court’s decision to dismiss the suit, but for a different reason: plaintiffs did not suffer a concrete harm when they purchased the allegedly underfilled boxes of chocolate.

As a reminder, slack fill is the empty space between products and their packaging. Slack fill is nonfunctional (and potentially misleading) if it cannot be justified by any of the following reasons: (1) protection of the contents of the package; (2) the requirements of the machines used to enclose the contents in such package; (3) unavoidable product settling during shipping and handling; (4) the need for the package to perform a specific function; (5) the container is reusable, part of the presentation of food, and has value that is significant and independent of its function to hold food; or (6) the inability to increase the level of fill or reduce the package size because, for example, the size is necessary to meet food labeling requirements or discourage theft.

Plaintiffs alleged that Fannie May deceived consumers by packaging chocolate in boxes that contained about 33-40% slack fill. They argued that the slack fill served no functional purpose and instead misled consumers into believing they were purchasing more chocolate than they actually received. Fannie May retorted that consumers knew exactly the amount of chocolate they were purchasing because the boxes disclosed the net weight and number of pieces inside.

However, the Seventh Circuit took issue with plaintiffs’ failure to allege that they suffered actual harm. For instance, neither plaintiff alleged that they paid more than the actual value of the merchandise received. According to the Seventh Circuit, “[t]hat is fatal to their effort to show pecuniary loss. Moreover, their request for damages based on the percentage of nonfunctional slack-fill is quite vague. They do not explain how a percentage refund of the purchase price based on the percentage of nonfunctional slack-fill corresponds to their alleged harm. They thus failed to raise a plausible theory of actual damage.” Notably, the Seventh Circuit began the opinion by stating that the suit proves “that almost anything can give rise to litigation.” And this latest opinion demonstrates the courts’ ever-growing skepticism of slack fill class action lawsuits.