SAN FRANCISCO — Courts may now approach slack-fill suits with greater skepticism when a manufacturer accurately labels its net weight following an amended opinion by the U.S. Court of Appeals for the 9th Circuit, according to a lip balm lawsuit.

Sugar lip balm by Fresh, Inc.
Sugar lip balm by Fresh, Inc. | Fresh, Inc.

The 9th Circuit Court of Appeals ended a class-action lawsuit in March against Fresh Inc. over the lip balm left in the bottom of the tube. The panel concluded that the plaintiff failed to state a claim that the packaging for Sugar lip balm by Fresh Inc. was misleading because it contained non-functional slack fill. The panel of judges concluded that the portion of the balm that was inaccessible using the product’s twisting mechanism did not meet the definition of slack fill.

The plaintiff, Angela Ebner, alleged that Fresh was deceiving customers into thinking there was extra product in the tube, but the twist-up mechanism at the bottom of the tube prevented the bottom of the lip balm from being used.

Just six months following the lawsuit, the 9th Circuit rejected the plaintiff’s petition for a rehearing, but amended its earlier opinion, providing a broader statement.

“The amended opinion includes language that may have implications for slack-fill actions going forward,” attorney Lawrence Weinstein, co-head of firm Proskauer Rose, told The Northern California Record. “The original opinion in Ebner focused substantially on the fact that the package did not involve slack space, but rather that a portion of the product was inaccessible. This made the case of limited significance because few, if any, other cases involved similar facts.”

The panel included new paragraphs in the amended opinion, explaining that the Sugar product did not have deceptive labeling and that the product’s weight label complied with federal and state law.

“In the amended opinion, the court’s focus was that not only was the label compliant with federal and California law, but also that there were no representations, pictures, diagrams or other depictions that falsely represented the amount of lip balm in the package that was accessible to consumers,” Weinstein said.

The 9th Circuit stated in its amended opinion there was no plausible claim under the reasonable consumer standard because there was no misrepresentation. The label was accurate and did not misleadingly imply that the product contained more accessible product than it actually did.

“The amended Ebner opinion has a broader potential application than the original opinion because the amended opinion’s analysis should apply to any slack fill case, not just ones involving accessibility of a product, as opposed to empty space in the package,” Weinstein said. “The amended opinion supports the view that it is not reasonable for a consumer to assume that all packages are filled to the brim with product, and that for a package with slack space to be actionable, there must be more than a mere discrepancy between the size of the package and the amount of product in the package.”

Slack fill cases have become popular in recent months with the Class Action Plaintiff's Bar. The federal Fair Packaging and Labeling Act aims to prevent consumers from being misled by packages containing excessive slack fill, which is nonfunctional or empty space that creates an illusion of more product. But slack fill is allowed for reasonable solutions such as preventing a product from breaking or if the product has a tray inside.

Frito Lay, for example, admits to having slack fill as a need to cushion chips from breaking during delivery.

"The amended complaint in Ebner may make it more difficult for plaintiffs bringing these suits to survey a motion to dismiss,” Weinstein said.

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