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Customers sue Wise Foods, say bags hold more air than chips

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NEW YORK — Customers have filed a class action lawsuit against Wise Foods, claiming Wise chips contain vastly more empty space than they do actual product.

Plaintiffs Sameline Alce and Desiré Nugent of New York and of Washington, D.C. say Wise Foods Inc. packages smaller amounts of chips into significantly larger bags.

According to the lawsuit, they say the empty space, known in the trade as slack-fill, serves no purpose other than to deceive consumers into thinking they’re getting more product than what’s actually in the bag.

Alce and Nugent included photographs and measurements of two bags of Wise chips in the lawsuit, showing that the product fills only about one-third of the available space inside the bag.

The rest is empty space.

They also claim because the bags are opaque, customers can’t see how much empty space is inside them.

The plaintiffs say competitors’ products don’t contain nearly as much slack-fill, and that some are using smaller bags to contain larger volumes of product, proving that Wise chips slack-fill serves no particular purpose.

Alce and Nugent argue that excessive slack-fill runs contrary to guidelines published by the Food and Drug Administration.

According to the FDA, slack-fill may be necessary to protect a product. It may also be a result of the manufacturing process, or it could be an unavoidable consequence of settling during shipping.

However, “slack-fill in excess of that necessary to accomplish a particular function is nonfunctional slack-fill” that could be considered misleading to a reasonable consumer. These oversized containers can be misleading in a way that can’t be remedied by statements on the label, such as disclosure of the net weight of the product.

“The surplus empty space in Defendant’s Product bags over and above the space in comparison chip bags is certainly non-functional slack-fill,” the plaintiffs argue.

“Likewise, when competitors fit more potato chips into the same size bag that Defendant uses, it proves that some of the empty space in Defendant’s Product bags is in excess of that needed for potato chip manufacturing and shipping,” the lawsuit states.

The two are requesting award damages up to $1,500 per violation under the D.C. Consumer Protection Procedures Act, and a court order requiring the defendant to repackage Wise chips without non-functional slack-fill.