Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.
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.
ATTORNEY ADVERTISING
Top Class Actions is a Proud Member of the American Bar Association
LEGAL INFORMATION IS NOT LEGAL ADVICE
Top Class Actions Legal Statement
©2008 – 2024 Top Class Actions® LLC
Various Trademarks held by their respective owners
This website is not intended for viewing or usage by European Union citizens.
36 thoughts onHerr Foods Class Action Says Potato Chip Bags Only Half-Full
So true!
I agree. Please tell me how to sign up for class action suit
I buy Herr Kettle Chips with sea salt. The bags are only about 1/2 full. Am I eligible to participate?
The case is still moving through the courts and has not yet reached a settlement. Claim forms are usually not made available to consumers until after a court approved settlement is reached. We recommend you sign up for a free account at TopClassActions.com and follow the case. We will update the article with any major case developments or settlement news! Setting up a free account with Top Class Actions will allow you to receive instant updates on ANY article that you ‘Follow’ on our website. A link to creating an account may be found here: https://topclassactions.com/signup/. You can then ‘Follow’ the article above, and get notified immediately when we post updates!
Use the price per ounce information on the shelf, not the size of the bag.
Caveat emptor
I AGREE, HERRS AS WELL AS FRITO LAYS, SNYDERS OF BERLIN AND MANY OTHERS.
More air than chips
All these chips are half full some of them are not even half the bag sign me up also.
The case is still moving through the courts and has not yet reached a settlement. Claim forms are usually not made available to consumers until after a court approved settlement is reached. We recommend you sign up for a free account at TopClassActions.com and follow the case. We will update the article with any major case developments or settlement news! Setting up a free account with Top Class Actions will allow you to receive instant updates on ANY article that you ‘Follow’ on our website. A link to creating an account may be found here: https://topclassactions.com/signup/. You can then ‘Follow’ the article above, and get notified immediately when we post updates!
All company’s ripping consumers off yes Herrs is one of the used to buy them when on sale.
I believe all brand of chips and cereals these days do this. When I was a kid, you opened a bag of chips and they went everywhere the bag was so full. Now you open the bag and lucky if there are 15 chips in the bag and 70% full of air. They claim it is sold by weight and not volume so if that is the case, make the bag / box smaller.
Pop tarts too – and all granola wrapped bars – they are hardly filled; all wrapper.