Is That Empty Air in Your Chip Bag a Scam? Maybe, but Not in Court.

See-through bag of potato chips.
Photo illustration by Natalie Matthews-Ramo/Slate. Photos by Thinkstock.

This post is part of Nosh, a special pop-up blog about snacks. Read more here.

Everyone knows the sting of the indignity. You sit down with a bag of chips, eager to devour some salty potato product. Perhaps you like the sweet tang of barbecue, or the tongue-curdling bite of vinegar, or cheese lobster, or no flavor at all—just the old classic, no fiddling necessary. Then you open the package and discover a heart-dropping secret: This tantalizing bag, whose swollen dimensions all but promised to sate your appetite with the goodies inside, contains a pathetically minuscule number of chips. You were misled! Worse, you were made a fool of, hoodwinked in the depths of your hunger—cheated, swindled, defrauded, and deceived.

Or were you?

In April 2017, two chip aficionados decided to find out. They filed a class-action lawsuit against Wise Foods alleging that its chips—subpar in my opinion, but sold in much of the United States nonetheless—violate state and federal consumer protection laws. Their complaint argued that Wise had “tricked” customers “into paying for air,” illegally giving them “less product than they bargained for.” It exhaustively demonstrated that competing potato chip brands have significantly less “slack fill” (the extra air in the bag) than Wise’s. On behalf of everyone in New York and D.C. “injured as a result” of Wise’s “deceptive conduct,” the litigants demanded monetary damages and attorneys’ fees.

Are Wise chips genuinely deceptive? The Food and Drug Administration merely requires that slack fill be “functional” in packaging—that is, necessary to protect the product from damage during shipping and handling. It’s quite difficult to prove that a company is adding “nonfunctional” slack fill when the measurement boils down to a judgment call about the best proportion of chips to air. (More air means fewer chips but also helps keep them intact; less air means more chips but risks shattering them into unsatisfying fragments.) Many states build upon that federal standard through their own consumer protection laws, asking whether reasonable consumers would expect more product than they get due to misleading packaging.

The Wise lawsuit made headlines in major outlets last year, presumably because so many Americans have suffered the injustice of underfilled potato chip bags. But slack fill lawsuits are actually quite common. These suits have exploded in frequency over the past few years, with more than 65 filed in 2015 and 2016. While most of them fail, the rare victory can be extremely lucrative: In 2016, StarKist settled a class action for $12 million after consumers alleged that it was underfilling its tuna cans.

More commonly, however, slack fill suits get tossed out at an early stage in litigation. Federal courts have dismissed lawsuits alleging that Pfizer put too few pills in its Advil containers and that Mondelez International put too few candies in its Sour Patch Kids Watermelon packages.
Suits attacking Swedish Fish for underfilling its boxes and Pret a Manger for putting too much space between sandwich halves appear destined for the same fate. Dismissing the Advil lawsuit, a federal judge wrote that the consumers’ complaint did “not pass the proverbial laugh test.” The chief impediment for the plaintiffs is the fact that each of these companies does list the weight of the product on the packaging. A casual consumer might size up her purchase by eyeing the size of the bag, but she cannot plausibly claim that the company lied to her.

That’s exactly what tripped up the Wise chips lawsuit. In March, U.S. District Judge Naomi Reice Buchwald dismissed the suit, ruling, “as a matter of law, that the slack-fill enclosed in the Products would not mislead a reasonable consumer.” In a caustic opinion, Buchwald pointed out that “the weight of the chips enclosed is prominently displayed on the front of each Product, in large sized font, in a color differentiated from the package background, and there is no allegation that the full weight represented is not actually in the bag.” This fact, combined with consumers’ well-documented expectation of “significant slack fill in potato chips,” sufficed to doom the suit.

Don’t pity the two chip lovers whose names are on the suit, though. This class action was filed by the same firm that targeted Advil, Sour Patch Kids, Swedish Fish, and Pret a Manger. Called the Lee Litigation Group, the firm files arguably frivolous lawsuits against a variety of companies in the hopes of landing a blow that sticks. C.K. Lee, who heads the firm, has unsuccessfully sued Kushyfoot for overstating the euphoric effect of its pantyhose, as well as an air freshener manufacturer for claiming that its products eliminate odor when in fact they only “mask” it. Lee has also filed a reported 140 suits against businesses whose websites are not fully accessible to blind people; these lawsuits have been called a “shakedown,” as the named plaintiffs typically collect much less than their lawyers.

The next time you recoil at an underfilled bag of chips, then, resist the urge to call a lawyer or run to the nearest courthouse. Americans’ litigiousness has undoubtedly helped to make our society safer, but you can’t sue your way to a fuller bag of chips. Wise will stop underfilling its bags when we all stop buying its underfilled bags. Until then, we’ll have to live with the affront of slack fill—a frustrating reminder that, in a free market, sometimes you’ll wind up paying for air.

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