Apr 05, 2016 - 3:00pm

Court Tosses Lawsuit over Lip Balm Left in Tube

Editor's note: This originally ran on instituteforlegalreform.com

The Ninth Circuit Court of Appeals has put the cap on a class action lawsuit against Fresh Inc. over the lip balm leftover in the bottom of the tube. 

The plaintiffs’ lawyers alleged that Fresh is hoodwinking consumers into thinking there is additional product in the tube, when the twist-up mechanism of the lip balm prevents the bit at the bottom from being utilized.  The plaintiffs’ lawyers claimed this is a violation of California’s Fair Packaging and Labeling Act, but the court ruled that any reasonable consumer would not consider this “deceptive” and would understand how these tubes work.

The plaintiffs’ attorneys were trying to buy into the growing trend of “slack fill” litigation, which is all that and a bag of chips for plaintiffs’ lawyers.  And we mean, literally, chips.

The empty space in packaging is known as “slack fill,” which you have probably noticed in bags of chips where room for extra air is added to keep the chips from being crushed.  In most cases that extra room in the packaging serves some purpose, such as protecting the contents or more space for product information. But regardless of whether the label states the correct amount of the product, plaintiffs’ lawyers claim that consumers are deceived when the packaging is larger than they believe the item necessitates. 

In the case against Fresh Inc., the court threw out the plaintiffs’ claims that the additional lip balm was slack because the product label accurately stated how much lip balm was on the part of the stick that consumers could use.

While this court recognized a frivolous lawsuit, plaintiffs’ lawyers are too often able to get away with these claims, especially in California.  

California’s class action law differs somewhat from federal law, making state courts a better venue for bringing class actions than federal courts. Couple this with the state having the largest population in the U.S., and California makes a great place to bring consumer driven lawsuits.  In fact, the Institute for Legal Reform’s 2015 Lawsuit Climate Survey ranked California dead last in the country for treatment of class action suits.

While a company that purposefully deceives consumers should be held responsible, plaintiffs’ lawyers are taking advantage of these state consumer protection laws to increase their bottom line.  A similar slack fill lawsuit in New York against Mentos alleged that the company used too much packaging for their gum.  The plaintiffs sought over $5 million in damages.

Are the nation’s consumers complaining about how much lip balm is in their stick? Or how their Mentos are packaged? Unlikely.

These lawsuits are more about the potential piece of the prize for the lawyers than the consumers they claim to protect. This time the plaintiffs’ lawyers are walking away empty handed, but it is only a matter of time until they find the next frivolous lawsuit to smack their lips over.

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