On May 3, 2021, plaintiffs voluntarily dismissed their July 28, 2016 slack-fill lawsuit against Barilla S.p.A. (“Barilla”). The suit had claimed the pasta company deceptively used the same size boxes for its regular and specialized pastas even though the boxes contained different amounts of pasta.  In the 2016 complaint, plaintiffs argued that Barilla products’ slack-fill misled consumers into believing that they were receiving more pasta than they actually were.

As we have previously blogged, companies have been challenged for their products’ slack-fill, which is the difference between the actual capacity of a container and the volume of product contained therein.  In the complaint, plaintiffs stated that Barilla’s box of regular elbow-shaped pasta contained 16 ounces of pasta but that the box of ProteinPLUS elbows contained 14.5 ounces of pasta and the box of Whole Grain elbows contained 13.25 ounces of pasta—despite all products using the same size packaging.  Plaintiffs demanded compensatory and punitive damages and an injunction requiring Barilla “to repackage the specialty pastas without non-functional slack fill.”

In 2019, a federal judge granted final approval of a settlement where Barilla would pay up to $450,000 in fees, all class members would release Barilla from future claims, and Barilla would include a minimum fill-line on its boxes to indicate the amount of pasta and a disclaimer that clarified that pasta is sold by weight; however, the Second Circuit Court of Appeals later vacated that decision because a fill-line or disclaimer language would not provide a remedy for all class action members.  As a result, and for undisclosed reasons, plaintiffs voluntarily dismissed their complaint with prejudice.