A putative class filed a false advertising claim against the Chicago chocolatier Fannie May Confections Brands Inc. earlier this month. Fannie May allegedly sells 7.0 oz. products in opaque boxes.  According to the complaint, consumers are deceived because the size of the boxes are larger than the volume of the products contained inside, leaving consumers to believe that they are buying more chocolate than what they actually received.  Specifically, the plaintiffs argue that packaging contains a significant amount of empty space – between 33% and 50%.  The plaintiffs argue that this non-functional slack fill constitutes a violation of federal and state law.  They are seeking to enjoin Fannie May from packaging with excess empty space, monetary damages, and attorney’s fees and costs.

TAKEAWAY: Advertisers should evaluate the amount of empty space in packaging when selling products.  This lawsuit is another example of how consumers are evaluating all components of advertising, including the packaging itself.