There is a recent proliferation of slack fill litigation involving food products – both class and non-class suits. If you are a food manufacturer, distributor or seller, you need to be prepared to deal with these claims. A good starting point, particularly for manufacturers, is to analyze your food packaging designs to determine if and how you can defend them in court, and if not, how you can change your packaging to mitigate your risk against slack fill claims while also preserving the success of your brand. Successful slack fill claims can impose considerable risk, from injunctive relief that disrupts distribution and sales, including product recalls, to the often enormous expense of package design overhauls, which may require you to start all over your branding efforts, to the disgorgement of revenues from sales of violating products.

Slack fill is the difference between the actual capacity of a container and the