A recently filed class action lawsuit alleges that the producer of Nuun electrolyte-enhanced drink tablets used deceptive practices in its packaging in violation of both state and federal consumer protection laws. The plaintiffs’ primary argument is that the company packaged the tablets in such a way that almost the entirety of the containers are made up of non-functional slack fill. According to the complaint, unless the slack fill, which is a term used to describe the empty space inside a container, serves an actual purpose or function, its use is deceptive in nature. The plaintiffs assert that based on this reasoning, the producer of the Nuun tablets deceptively manufactured the containers in such a way that they appear to contain more of the product than is actually present.

Deceptive Packaging

In this class action suit, the plaintiffs allege that Nuun tablets are sold in non-transparent containers covered with brightly colored wrapping, in an effort to make it impossible to see how many tablets are in each bottle. The complaint also points out that the lids of the tube-shaped containers are controlled by a spring mechanism, which prevents purchasers from shaking the product. According to the plaintiffs, Nuun containers only hold 10 tablets when there is actually room for at least 13 tablets, meaning that around 24 percent of the packages contain slack fill.

The Food, Drug, and Cosmetic Act (FDCA)

The plaintiffs base their complaint on the FDCA, which states that food is misbranded if its container is made or filled in a misleading manner. In support of its argument, the complainants also point to the Code of Federal Regulations (CFR), which contains rules promulgated in accordance with the FDCA. According to these rules, containers that do not allow consumers to fully view the contents are considered misleading if they contain any non-functional slack fill. Slack fill will only be considered functional if:

• It is required to protect the contents of the package;
• Its use is required by the machine used for enclosing the package’s contents;
• The slack fill was caused by unavoidable settling during shipping and handling;
• The package has a specific function that is inherent to the nature of the food and is clearly communicated to purchasers;
• The product consists of food packaged in a reusable container; or
• It is impossible to reduce the size of the package or increase the level of product due to labeling needs, to accommodate tampering-resistant devices, or to facilitate handling.

The complaint further alleges that none of these exceptions apply to the situation involving Nuun products, meaning that the company violated both federal and state consumer protection laws. The plaintiffs request restitution and an injunction that would require Nuun to repackage its products in accordance with FDCA standards. 

Contact a Consumer Protection Attorney Today

Inappropriately labeled, packaged, or advertised consumer products can have a significant impact on the lives of thousands. Fortunately, both federal and state law protect buyers from certain deceptive practices, so if you live in New Jersey or Pennsylvania and have concerns about a product you purchased, please contact The Kim Law Firm, LLC by calling 855-996-6342 and we will help you set-up a consultation with one of our dedicated attorneys.