Krazy Glue Class Action over Product PackagingFeb 7, 2017
Elmer's Products Inc., the maker of Krazy Glue, is facing a consumer fraud class action lawsuit. The lawsuit alleges that the Krazy Glue packaging contains slack fill-the difference between the actual capacity of a container and the volume of product it contains therein.
The lawsuit alleges that Elmer's Products is profiting by misleading consumers about the amount of glue they are buying. According to the legal complaint, the large and opaque packaging for Krazy Glue misleads customers into thinking the package contains significantly more glue than it actually does. The lawsuit notes that the container is more than five times larger than the "tiny tube of glue" inside. Further, according to the legal complaint, the opaque packaging "prevents the consumer from directly seeing or handling the product and leads the reasonable consumer to believe that the package contains significantly more product than it actually does."
The attorneys at Parker Waichman LLP are knowledgeable about such consumer issues as deceptive packaging and can answer questions from consumers who feel they have been deceived.
Class Action Against Krazy Glue
The man who brought the case, bought Krazy Glue at a True Value hardware store in Los Angeles, believing he was buying the amount represented by the "Stay Fresh" opaque container, instead of the smaller tube of glue inside that container. Because the container was opaque, he could not see how much glue he was actually buying. "If plaintiff had known at the time of purchase the actual size of the tube of product contained in the packaging, he would not have purchased the Krazy Glue or paid less for it," the lawsuit states.
The lawsuit's allegation that the container is misleading is based on California state law definition of slack fill: "the empty space in a package that is filled to substantially less than its capacity." The size and slack fill of the container do not fall within any safe harbor protections for Elmer's Products under California business law. According to the lawsuit, the container does not provide protection to the contents not does it have any significant value itself, which would be justifications for the larger size of the container. The opaque container does not have any information or instructions that cannot also be found on the actual tube of glue.
The legal complaint says the use of "non-functional slack-fill allows [Elmer's] to lower their costs by duping customers into thinking they are getting a better bargain than they actually receive," the complaint says. Elmer's has realized "sizeable profits" on Krazy Glue.
Slack-Fill Class Actions
Slack-fill class actions often occur in food product cases, where the plaintiffs allege that a food product manufacturer has reduced the amount of product inside an opaque container without changing the package. Consumers see the same or almost the same size package without a reduction in price in proportion to reduction in contents. Even though the new, reduced weight is accurately stated on the package, consumers have challenged the practice as being misleading to consumers. A consumer may pick up a familiar package and not be aware that they are getting less product for the usual price.
Slack-fill claims in food and beverage cases have had seen some success in instances where an opaque package prevents the potential purchaser from seeing the contents. But manufacturers have been able to defend against slack-fill claims in instances where they use clear packages, and the contents are completely visible, or where they use packaging that only partially obscures the contents. Manufacturers argue that slack-fill regulations do not apply in such cases because consumers can see how much they are purchasing.
In 1993, when the U.S. Food and Drug Administration (FDA) published its proposed rule implementing the slack-fill provisions, the agency invited public comment on "whether it makes a difference if a product is packaged in a container that allows consumers to fully view the contents of the container. Specifically, would nonfunctional slack-fill be misleading when consumers can clearly see what they are purchasing?"
In the Krazy Glue class action, three classes are proposed for the class action: a nationwide class of consumers who purchased a .07-ounce tube of Krazy Glue in a .37-ounce outer container; a California sub-class; and a Consumer Legal Remedies Act California subclass. The complaint alleges that Elmer's Products violated California's Consumer Legal Remedies Act and the unfair competition law.
If You Have Been Deceived by Slack Fill
If you feel you have been deceived by slack fill in product packaging, the attorneys at Parker Waichman LLP can provide a free, no obligation evaluation of a possible case. To reach the firm, fill out the online contact form or call 1-800-YOURLAWYER (1-800-968-7529).