Viewing the Package Half Full: Proposed Legislation to Reduce Environmental Harm from Shrinkflation and Nonfunctional Slack-Fill
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In 2020, McCormick settled a $2.5 million class action lawsuit after five years of litigation. This is the result of McCormick responding to wholesale price increases of ground pepper and peppercorns by reducing the amount of those products in the tins and grinders they are sold in. The plaintiffs allege that, regardless of McCormick correctly labeling these containers with the new product weight, by using the same size containers, this confused consumers. While media accounts and even some judges have poked fun at such nonfunctional slack-fill lawsuits, the environmental harm from the practice is no laughing matter. Unfortunately, existing legal protections against nonfunctional slack-fill focus on consumer deception and ignore the environmental harm. Consequently, existing case law affords numerous defenses to business engaged in the practice, but does nothing to mitigate the environmental harm.Under these existing standards, courts rarely permit nonfunctional slack-fill lawsuits to proceed past the motion to dismiss phase. This first-of-its-kind Article utilizes an environmental framework to assess the full ramifications of nonfunctional slack-fill and proposes new federal legislation to limit the practice. Properly understood, nonfunctional slack-fill contributes great harm to the environment while providing no offsetting societal benefit. It harms consumers, retailers, and even the wholesalers who engage in the practice in addition to the environmental harm. While nonfunctional slack-fill is not the most pressing environmental concern of our time, it is perhaps the concern with the easiest solution. The win-win nature of this proposed legislation has the potential to serve as a powerful catalyst for igniting bipartisan agreement on common sense environmental protectionsomething desperately needed in the current, polarizing political climate.
