This class action investigation focuses on laundry detergent and seeks to determine whether manufacturers use non-functional “slack fill” to mislead consumers as to the actual amount of laundry detergent in a container.
Who is Affected?
Purchasers of these laundry detergent products in specific containers:
Overview of Detergent Slack Fill Investigation
Detergents are sold in a variety of containers and packaging materials. Consumers often notice the empty space in product containers for a wide range of products. This space is referred to as “slack fill”.
The U.S. Food and Drug Administration (FDA) defines slack fill as the difference between the actual capacity of a container and the volume of the product it contains. The FDA allows slack fill but prohibits “misleading” containers that do not allow consumers to fully view the contents. The FDA defines “nonfunctional slack-fill” as the empty space in a package that is filled to less than its capacity for reasons other than:
(1) Protection of the contents of the package;
(2) The requirements of the machines used for enclosing the contents in such package;
(3) Unavoidable product settling during shipping and handling;
(4) The need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of a food), where such function is inherent to the nature of the food and is clearly communicated to consumers;
(5) The fact that the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has value which is both significant in proportion to the value of the product and independent of its function to hold the food, e.g., a gift product consisting of a food or foods combined with a container that is intended for further use after the food is consumed; or durable commemorative or promotional packages; or
(6) Inability to increase level of fill or to further reduce the size of the package (e.g., where some minimum package size is necessary to accommodate required food labeling (excluding any vignettes or other nonmandatory designs or label information), discourage pilfering, facilitate handling, or accommodate tamper-resistant devices). (21 CFR 100.100)
Consumer actions for use of prohibited slack fill allege the manufacturers have been unjustly enriched by collecting millions of dollars from the sale of their products that they would not have otherwise earned.
Slack Fill Complaints Lawsuits and Settlements Continue
Regulatory enforcement and class action damage actions against corporations for misleading packaging of various products in violation of the federal Fair Packaging and Labeling Act (21 U.S.C. 321) are not new and violations continue. Slack fill cases have resulted in civil penalties against Coty, CVS, Hershey, Johnson & Johnson, Mars, and Walgreens in recent years and a class action suit is currently pending against Johnson & Johnson Inc. in U.S. District Court for the Southern District of New York.
Class action lawyers are currently investigating several companies for allegedly manufacturing, distributing, marketing and selling laundry detergent products in misleading containers that contained nonfunctional slack fill, in violation of FDA requirements and state consumer protection laws. Purchasers of XTRA™ (45 oz) and Dreft® (50 oz) laundry detergents (Manufacturer: Church & Dwight Co., Inc.) and OxiClean™ (60 oz), Era® (50 oz) and Cheer® (50 oz) laundry detergents (Manufacturer: Procter & Gamble Co.) may be eligible to join a free class action lawsuit investigation.