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Too Much Empty Space In Pepper Tin Prompts Class-Action Lawsuit

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Too Much Empty Space In Pepper Tin Prompts Class-Action Lawsuit

Too Much Empty Space In Pepper Tin Prompts Class-Action Lawsuit

Too Much Empty Space In Pepper Tin Prompts Class-Action Lawsuit

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  • <iframe src="https://www.npr.org/player/embed/474935457/474935458" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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A large spice company recently started putting less pepper in its tins — and leaving empty space at the top of the tin. There's a technical term for that empty space: "non-functional slack fill."

RENEE MONTAGNE, HOST:

The McCormick spice company has made a small change to its familiar tins of black pepper. Consumers may not have noticed, but some lawyers did. That change is now the basis of a class-action lawsuit. Jacob Goldstein of our Planet Money podcast team explains.

JACOB GOLDSTEIN, BYLINE: How's it going? We're NPR reporters. We're doing a story on pepper.

The other day, I went out on the streets of Manhattan with a producer. I had two tins of McCormick pepper. One of the tins was the old style - the one McCormick sold until about a year ago. The other one was the new style - the one you can buy now. And I asked people walking by to play a little game - spot the difference between the old tin and the new one.

UNIDENTIFIED MAN #1: Same color - red and white, primarily. A little blue in McCormick.

UNIDENTIFIED WOMAN #1: It appears that the M and the C are the same.

GOLDSTEIN: OK - same font?

UNIDENTIFIED WOMAN #1: It appears so.

GOLDSTEIN: OK.

UNIDENTIFIED WOMAN #1: Unless it's an illusion.

GOLDSTEIN: Not an illusion - same font. Some people thought one tin was a different size.

Do you think it's a little bit thicker?

UNIDENTIFIED MAN #2: It's probably narrower, right?

GOLDSTEIN: Nope - exactly the same size. The only difference is a few numbers at the bottom that tell you how much pepper is in the tin.

UNIDENTIFIED MAN #3: Different amount - different amount.

GOLDSTEIN: The old tin, the one McCormick sold for years, had four ounces of pepper; the new one, three ounces.

UNIDENTIFIED MAN #3: Significantly less - same size can, a quarter less.

UNIDENTIFIED WOMAN #2: Then what is the rest of it?

GOLDSTEIN: Air.

UNIDENTIFIED WOMAN #2: Air?

GOLDSTEIN: That air is the basis of a class action, a lawsuit arguing that consumers lost out because of the empty space at the top of the tin. Elizabeth Fegan is one of the lead lawyers for the plaintiffs.

Are you entering the tins into evidence?

ELIZABETH FEGAN: We are.

GOLDSTEIN: May I direct your attention...

FEGAN: We're making sure they preserve them.

GOLDSTEIN: The pepper company, McCormick, wouldn't talk to us for the story. But they have argued in court filings, hey, we put the correct amount of pepper right there on the front of the tin for everyone to see. Fegan says it doesn't matter.

FEGAN: There's a specific law that prohibits what's called nonfunctional slack-fill.

GOLDSTEIN: I just want to, like, delight in that phrase a little more. Just say the phrase.

FEGAN: Nonfunctional slack-fill, which means making a large package but only filling it with a small amount of product.

GOLDSTEIN: Side note, there is such a thing as functional slack-fill. That is air that's in the package for a reason, like to keep potato chips from getting crushed. But Fegan argues there is no reason for it in the pepper case. And millions of consumers may be entitled to a few dollars each.

If Fegan wins the case or negotiates a settlement, fees for her and the other lawyers involved could be over a million dollars. There has been a backlash to class actions. Businesses have started including clauses in contracts to make it harder for people to sue. And a bunch of class action challenges have gone to the Supreme Court, with mixed results. One of the people who helped create the modern class action is an NYU professor named Arthur Miller. And he says he understands the backlash.

ARTHUR MILLER: There are bad class actions - of course there are bad class actions. And there are silly class actions.

GOLDSTEIN: But he says class actions do help solve this basic economic problem - what happens when a company improperly takes a small amount of money from many, many people? No lawyer is going to represent one person who lost a tiny amount of money. It just wouldn't make economic sense.

MILLER: I can't take you. But if I have a thousand you's, or ten thousand you's, or a million you's, now we're in business.

GOLDSTEIN: Miller hasn't studied the pepper case in detail. He doesn't have an opinion on which way it's going to go. But he says consumer protection laws are supposed to protect people from small things. And one of the purposes of class actions is to make sure those laws are enforced. Jacob Goldstein, NPR News.

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