Air Bagged and Sold: The Price of Nonfunctional Slack-fill

By: Ralph J. D’Agostino*| Guest Writer

By kundl (Comida Chatarra  Uploaded by JohnnyMrNinja) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

By kundl (Comida Chatarra Uploaded by JohnnyMrNinja) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

There is one first world problem many of us habitual snackers can relate to – with wide eyes you reach for what appears to be a bag stuffed with the answers to your growling stomach’s prayers, then… pop! The air quickly pours out of the bag and the joy rushes out of your soul as you realize its contents were a mere fraction of its container. But is leaving you and the bag hopelessly deflated, a result of caveat emptor or possibly false advertisement? This is the question posed to the Southern District of New York in a case brought against Wise Foods, the maker of Wise potato chips.

A federal judge in Washington D.C. weighed in on a similar conundrum last year when she stated, “[i]t is difficult to understand how the size of a package or container could possibly not be considered a form of advertising or promotion…The size of a package signals to the consumer vital information about a product and is as influential in affecting a customer’s choices as an explicit message on its surface.”  She added that “a container’s size can indeed give consumers a wrong impression about product quantity.”  The judge cited the Lanham Act; “A container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill.” Although the container addressed in the D.C. case also displayed an accurate net weight of its contents, it contained ground pepper, not chips. The difference is chip producers have historically been allowed to add extra space in their packaging because it has been seen to serve a functional purpose.

The extra air in chip bags is nitrogen. According to a 1994 food science study, nitrogen flushed packages help keep the potatoes from spoiling, the oil from going rancid, and the chips from becoming soggy. In addition, producers add extra space in the package to serve as an air cushion for the delicate chips. This prevents the potato chips from becoming potato crumbs during the rough handling of the shipping process. The FDA has recognized both preservation and protection to be functional slack-fill. The plaintiff’s claim is not that Wise is simply a money hungry monster trying to fool innocent snackers, however, rather they contend Wise is leaving more space in its packaging than what is needed to serve a functional purpose. Thus, the pivotal question is at what point does the extra space added to chip packaging no longer constitute functional slack-fill?

A recent experiment, made famous after a clip of its findings went viral, could help guide the court’s analysis. The frequently cited experiment concluded the most efficient way to package chips is to have no slack at all, rather the bags should be vacuum-sealed. This experiment illustrates the 1994 food science study’s finding that chips are better preserved when they are not exposed to oxygen, not necessarily when the bags are puffed up with nitrogen. Furthermore, the experiment revealed the bags containing the most air also had the most broken chips. Thus, being vacuum-sealed is also the most efficient way to protect the chips during shipping. Finally, the experiment noted how extra air makes the bags less efficient to transport, resulting in a large and unnecessary carbon footprint. For example, the experiment pointed out how a current Dorito shipment using 100 trucks to deliver the product could make the delivery with only 14 trucks if the chips were vacuum-sealed.

Yet, the Court may stick to the age-old idiom – everything is relative. Although the recent experiment found many companies added less slack in their packaging than Wise, there were still many who added much more. In addition, the experiment revealed in Lays’ tube packaging, which presumably has no need for extra support, there is even more extra space than Wise’s bag packaging. Thus, although Wise may add some unnecessary slack to their packaging, doing so is well within the industry norms.

In sum, the court really could go either way with their decision. However, whatever decision it does reach will likely have a substantial impact on producer packaging, the environment, and certainly us habitual snackers.

Ralph J. D’Agostino is a second-year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in Economics from Syracuse University. He is currently a guest summer blogger for the Journal of Business & Intellectual Property Law at Wake Forest University.