Popcorners Class Action Lawsuit Says Snack Bags are Mostly Air

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A class action lawsuit claims BFY Brands’ “Popcorners” contain too much air and not enough chips.

Plaintiff Derrick Reaves alleges that BFY Brands Inc. includes too much air in their one ounce bags of Popcorners “popped corn chips.”

He says the packaging is misleading, causing him and other similarly affected consumers to believe there’s more food in the bag than there really is.

BFY sells its products through numerous online and brick-and-mortar stores. Popcorners are available in a number of flavoring, all of which have the same packaging:

• Smokin’ Jalapeño White Cheddar
• Sweet Heat Chili
• Sweetly Salted Caramel
• Cinema Style
• Cheddar Feel-Good
• Salt of the Earth
• Carnival Kettle

Reaves argues that the packaging of these chips contain too much air, or slack-fill, and that most of the slack-fill in the chip bags is nonfunctional. He claims that the inclusion of so much nonfunctional slack-fill serves the sole purpose of misleading consumers about the quantity of food they are purchasing.

The Food Drug and Cosmetic Act does allow for some amount of slack-fill in products that performs the following functions:

• To satisfy the requirements of the machines used to close the packages
• Product settling during shipping and handling
• The need for the package to perform a specific function inherent to the nature of the product
• Instances in which the food is packaged in a reusable container that adds value to the products
• Protection of the food
• Inability to increase fill level or reduce the package size for functional purposes

Slack-fill that does not perform any of these functions is considered nonfunctional slack-fill under the FDCA, and is in violation of regulations.

The Popcorners chip bag class action lawsuit argues that looking at packaging is a large way in which a consumer determines what products to buy, so a product’s packaging is part of its advertising. Thus, the Popcorners slack-fill class action lawsuit claims that the Popcorners chip packaging constitutes false advertising of the process. A number of federal and state laws prohibit the use of misleading packaging to trick consumers into buying a product.

Reaves claims that the “size of the product bags in comparison to the volume of the chips contained therein makes it appear to [consumers] that they are buying more chips than what is actually being sold.” The chip bags are opaque, so Reaves claims that reasonable consumers would believe that the bags contain more chips than are in the bag. Because they are deceived, the consumers are “denied the benefit of the bargain” of their purchase, effectively paying for air.

According to the Popcorners class action lawsuit, the one ounce bags of Popcorners are eight inches tall by five and a half inches wide. They have seven inches of vertical capacity to hold food. The way the Popcorners were sold to Reaves and other consumers, the bags allegedly contain 54 percent slack-fill.

Reaves cites comparable products to show that Popcorners’ packaging contains nonfunctional snack-fill. Among other examples, he claims that comparable bags of Doritos contain only 29 percent slack-fill to Popcorners’ 54 percent. Since the chips are similar in size, shape, and need for cushioning, they should have similar slack-fill requirements.

The plaintiff seeks damages for himself and similarly affected consumers.

Reaves is represented by C.K. Lee and Anne Seelig of Lee Litigation Group PLLC.

The Popcorners Nonfunctional Slack-Fill Class Action Lawsuit is Derrick Reaves v. BFY Brands Inc., Case No. 1:18-cv-02065, in the U.S. District Court for the Southern District of New York.