A class action lawsuit has been filed in a California court that accuses MusclePharm of misleading consumers regarding the size of their whey protein product containers. “Slack-fill” refers to empty space. The complaint contends that MusclePharm intentionally deceived consumers of certain kinds of their nutritional supplements with large containers that offered little inside.
Plaintiffs Matthew Gates and John Martinez claim they purchased MusclePharm whey protein products, which come packaged in non-transparent containers. Both were surprised and disappointed to find the containers with more than 45% empty space, or nonfunctional slack-fill. Food products are permitted to have empty space in their containers for reasons such as protection of contents, unavoidable settling during shipping, and the requirements of the machines to seal the packaging. However, what is defined as nonfunctional slack-fill is empty space in a container for reasons not approved under the Federal Food Drug and Cosmetic Act.
Under the FDCA, any food must be deemed misbranded if its labeling is false or misleading, or if its “container is so made, formed, or filled as to be misleading.” Additionally, any nontransparent container, or any container that does not allow the consumer to fully view its contents, is considered to be filled as to be misleading if it contains nonfunctional slack-fill.
For example, MusclePharm’s Combat Protein Powder nontransparent container is about twelve inches tall. It is filled with the protein powder about five inches. The next seven inches of the container, or about 46% of it, is nonfunctional slack-fill.
The class action suit asserts that any reasonable consumer would believe there is more of the product in the container than there actually is. The class members contend they never would have purchased MusclePharm’s whey protein products had they known how little of it was inside.