Herr Foods Class Action Says Potato Chip Bags Only Half-Full

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According to two consumers in a proposed class action lawsuit against Herr Foods Inc., the size of the package matters when it comes to purchasing potato chips.

Plaintiffs Kedney Merisier and Dreu Vanhoose allege the potato chip manufacturer intentionally packages its products with non-functional slack-fill (the empty space in consumer packaging) to mislead consumers into believing they are receiving more chips than they actually are.

Herr’s potato chips are sold in non-transparent plastic or aluminum bags throughout the United States in numerous retail and online outlets such as Duane Reade, CVS, Rite Aid and Amazon. The potato chips are sold in various product lines, flavors and quantities.

According to the plaintiffs, the size of the chip bags in comparison to the volume of the chips contained inside makes it appear as though consumers are getting more than what is actually sold.

In fact, Merisier and Vanhoose claim that they and other consumers rely heavily on the size of the package but would not have purchased the chips if they had known the bags were substantially empty.

“Regardless of the different sizes of the plastic and aluminum chip bags, the Products are invariably packaged in non-transparent wrappings so that Plaintiffs and Class members cannot see the slack-fill in the bag,” the Herr Foods class action lawsuit states.

For example, the lawsuit claims that in a 3.5 oz. bag of Herr’s Crisp ‘N Tasty Potato Chips, only 4.5 inches of chips are contained out of a total bag height of 9.75 inches, about 46 percent of the available space, leaving 54 percent slack-fill. In comparison, the lawsuit points out that a competitors’ brand 6.25 oz. bag of chips only contains 33 percent slack-fill.

While some of Herr’s slack-fill may serve the functional purpose of minimizing the breakage of chips, the plaintiffs contend the Herr’s slack-fill exceeds the amount necessary for this.

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.

Specifically, the FDA defines non-functional slack-fill as any “slack-fill in excess of that required to achieve functional purposes such as protection of the contents of the package or the inability to increase level of fill or to further reduce the size of the package.”

“Thus the possibility that some portion of the slack-fill in Defendant’s Products may be justified as functional based on [FDA exemptions], it does not justify slack-fill that is in excess of the required to serve a legitimate purpose …Such slack-fill serves no purpose other than to mislead consumers about the quantity of food that are actually purchasing,” the lawsuit states.

The plaintiffs are bringing forth causes of action that Herr’s violated the Federal Food Drug & Cosmetic Act (FDCA) and various New York and D.C. consumer protection laws by misleading consumers as to the actual amount of the potato chips contained in the bags.

Merisier is seeking to represent a Class of all New York residents who purchased Herr’s potato chip products and Vanhoose is seeking to represent a Class of all D.C. consumers similarly situated.

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

The Herr Chips Deceptive Packaging Class Action Lawsuit is Kedney Merisieri, et al. v. Herr Foods Incorporated, Case No. 1:16-cv-06350, in the U.S. District Court for the Eastern District of New York.