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Potato Chip manufacturer Wise Foods faces Class Action Lawsuit for alleged excessive slack-fill

"When competitors fit more potato chips into the same size bag that Defendant uses, it proves that some of the empty space in Defendant's Product bags is in excess for potato ship manufacturing and shipping," the lawsuit states.

Bags of Wise potato chips contain vastly more empty space than they do actual product, according to a recently filed class action lawsuit in the United States.

Plaintiffs Sameline Alce and Desiré Nugent claim defendant Wise Foods Inc. packages smaller amounts of chips into significantly larger bags.

They say the resulting empty space, known in the trade as slack-fill, serves no purpose other than to deceive consumers into thinking they’re getting more product than what’s actually in the bag.

In their Wise chips slack-fill class action lawsuit, Alce and Nugent include photographs and measurements of two bags of Wise chips, showing that the product fills only about one-third of the available space inside the bag. The rest is empty space.

Furthermore, because the bags are opaque, the plaintiffs say prospective purchasers can’t see how much empty space is inside them.

Competitors’ products don’t contain nearly as much slack-fill, the plaintiffs claim. In fact, they say some competitors are using smaller bags to contain larger volumes of product, proving that Wise chips slack-fill serves no particular purpose.

Even some of Wise’s own products are packaged with less slack-fill. The plaintiffs say that a 9.25-ounce bag of Wise Original Dipsy Doodles contains less than one-third slack-fill, proving that Wise chips can be packaged without an excess of empty space.

Alce and Nugent argue that excessive slack-fill runs contrary to guidelines published by the Food and Drug Administration. According to the FDA, slack-fill may be necessary to protect a product. It may also be a result of the manufacturing process, or it could be an unavoidable consequence of settling during shipping.

However, “slack-fill in excess of that necessary to accomplish a particular function is nonfunctional slack-fill” that could be considered misleading to a reasonable consumer. These oversized containers can be misleading in a way that can’t be remedied by statements on the label, such as disclosure of the net weight of the product.

“The surplus empty space in Defendant’s Product bags over and above the space in comparison chip bags is certainly non-functional slack-fill,” the plaintiffs argue.

“Likewise, when competitors fit more potato chips into the same size bag that Defendant uses, it proves that some of the empty space in Defendant’s Product bags is in excess of that needed for potato chip manufacturing and shipping,” the lawsuit states.

(Click to read Class Action Complaint)

Class Action Complaint against Wise Foods Inc.

Alce and Nugent propose to represent two plaintiff Classes, one from each of their home jurisdictions of New York State and the District of Columbia. Both Classes would include all persons who purchased any of the Wise chips at issue during the applicable statutory limitations periods.

They are asking for an award of damages, including statutory damages up to $1,500 per violation under the D.C. Consumer Protection Procedures Act, and a court order requiring the defendant to repackage Wise chips without non-functional slack-fill.

The plaintiffs are represented by attorneys C.K. Lee and Anne Seelig of Lee Litigation Group PLLC.

The Wise Chips Slack-Fill Class Action Lawsuit is: Sameline Alce and Desiré Nugent v. Wise Foods Inc., Case No. 1:17-cv-02402, in the U.S. District Court for the Southern District of New York.