McCormick Seeks Dismissal of 'Slack-Fill' Suit

McCormick & Co. filed to dismiss a lawsuit brought by a smaller rival that alleged the spice maker deceived shoppers by putting less pepper in its tins while leaving the price unchanged.

In a filing in the U.S. District Court in Minnesota, McCormick said that privately held Watkins Inc. didn't show that it suffered any harm from McCormick's actions or that any consumers were deceived.

"Without alleging such injury, plaintiff has no standing to bring this suit," McCormick said Friday in the filing.

The Watkins lawsuit, filed last month, leaned on regulations governing how much air manufacturers are allowed to include in their packaging. So-called slack-fill laws allow empty space for reasons like protecting the contents from damage and limitations of the machines that pack them, but too much extra space can run afoul of the law.

Watkins, which sells spices as well as other household products, argued that McCormick went too far when it cut the volume of pepper in its tins without changing the size of the packaging, creating what is known as nonfunctional slack fill. It said the change put it at a competitive disadvantage in the spice aisle and confused consumers too.

McCormick's change essentially amounted to a stealth price increase. McCormick said last month it did so because of a sharp increase in pepper costs in recent years, including a 60% rise in the year before the change was made.

A hearing has been scheduled for late September on the motion to dismiss. A McCormick spokeswoman said the company wouldn't comment beyond the filing.

In a statement, Watkins reiterated that it believes McCormick "acted in an illegal and deceitful manner."

Slack-fill violations have been fertile grounds for litigation in recent years, with district attorneys and plaintiffs alleging that consumers have been deceived by the size of the packaging on everything from snacks to deodorants. McCormick is facing a separate class-action suit, filed days after Watkins made its allegations, over the changes to its pepper packages.

Earlier this month, Procter & Gamble Co. paid $850,000 in civil penalties and costs and agreed to change the packaging of some Olay skin-care products as part of a settlement with California prosecutors.

Write to Paul Ziobro at [e-mail]

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