There are some circumstances when so-called "slack fill" -- the space in a product's packaging that isn't filled with product -- seems reasonable. Chip bags, for example, aren't filled top-to-bottom with chips, but instead have a buffer of air that helps keep the chips from getting broken. In other cases, however, slack fill seems to make the packaging misleading to consumers. If the problem is significant enough, it could be a classic case of consumer deception.
U.S. Food and Drug Administration rules allow a certain amount of empty space in packages to protect the product or as the result of settling. When consumers sue over excessive slack fill, courts are required to determine whether the manufacturer has a legitimate reason for it. They must also decide if it's reasonable for consumers to feel deceived.
In some cases, manufacturers have successfully defended their slack fill by pointing out that the consumer can easily tell that the package is not filled to the brim by picking it up and feeling the product shift around.
In other cases, consumers have been told their concerns aren't reasonable because they continued buying the product after discovering the box was not full. Once you buy one disappointing package, you cannot claim to have been deceived when buying a second package of the same type.
On the other hand, some packages are found to be deceptive when the package-to-product ratio is too high. Recently, a Los Angeles consumer advocate reached a $2.5 million settlement with Ferrara Candy, which manufactures Jujyfruits, Lemonheads, Jaw Busters and other candies. His client bought a box of Jujyfruits only to find it was only half full, and the company used a similar amount of slack fill in its other candies. Now, shoppers who bought certain Ferrara candies in the past five years are eligible for up to $7.50, and Ferrara has agreed to decrease the slack fill in future packages.
The U.S. Chamber of Commerce and other critics say that slack fill lawsuits are frivolous, but that depends on your point of view. If you actually feel cheated by deceptive packaging, you could be doing the right thing by insisting that the company change its ways -- even if you only receive a few dollars in compensation.
Slack fill lawsuits are an excellent illustration of the value of class actions. It makes no sense for someone to spend thousands on an attorney when the individual return is so small. The only way such lawsuits make sense is when many people affected by the same problem band together to solve it.