The Ninth Circuit Court of Appeals has put the cap on a class action lawsuit against Fresh Inc. over the lip balm leftover in the bottom of the tube.

The plaintiffs’ lawyers alleged that Fresh is hoodwinking consumers into thinking there is additional product in the tube, when the twist-up mechanism of the lip balm prevents the bit at the bottom from being utilized.  The plaintiffs’ lawyers claimed this is a violation of California’s Fair Packaging and Labeling Act, but the court ruled that any reasonable consumer would not consider this “deceptive” and would understand how these tubes work.

The plaintiffs’ attorneys were trying to buy into the growing trend of “slack fill” litigation, which is all that and a bag of chips for plaintiffs’ lawyers.  And we mean, literally, chips.

The empty space in packaging is known as “slack fill,” which you have probably noticed in bags of chips where room for extra air is added to keep the chips from being crushed.  In most cases that extra room in the packaging serves some purpose, such as protecting the contents or more space for product information. But regardless of whether the label states the correct amount of the product, plaintiffs’ lawyers claim that consumers are deceived when the packaging is larger than they believe the item necessitates.

In the case against Fresh Inc., the court threw out the plaintiffs’ claims that the additional lip balm was slack because the product label accurately stated how much lip balm was on the part of the stick that consumers could use.

While this court recognized a frivolous lawsuit, plaintiffs’ lawyers are too often able to get away with these claims, especially in California.

Read the full post at InstituteforLegalReform.com.

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