The U.S. District Court for the Southern District of New York has dismissed with prejudice a class-action lawsuit that alleged that Annie Inc’s Bunny Fruit Snacks – Tropical Treat (the “Fruit Snacks”) mislead consumers with non-functional slack fill.

By way of background, pursuant to Section 403(d) of the Food, Drug, and Cosmetic Act (codified at 21 U.S.C. § 343), a food may be deemed misbranded if its container is “so made, formed, or filled to be misleading.” A container is “considered to be filled as to be misleading” if it “does not allow the consumer to fully view its contents” and “it contains nonfunctional slack-fill.” (See 21 C.F.R. § 100.100). “Slack-fill” is defined as the “difference between the actual capacity of a container and the volume of product contained therein” and is prohibited by FDA as “nonfunctional slack-fill” unless it is present for any of the reasons listed in Section 100.100 (e.g., it protects the package or is required by the packaging machine).

The box in which the fruit snacks were packaged allegedly contained 60% non-functional empty space (slack fill). However, the front of the box also included a disclosure which provided the number of fruit packages in the box, the weight of each package, and the net weight of the box. The accuracy of these disclosures was not challenged.

Notably, the Court did not reach the issue of whether the slack-fill was non-functional. Instead, the Court held that as a matter of law a reasonable consumer could not be misled by the alleged non-functional slack fill because the contents of the package were clearly disclosed. Accordingly, it dismissed the deceptive practices claims.