Class-Action Lawsuits for “Wasted” Products—A Dangerous Trend

Anyone who has ever struggled to squeeze that last bit of toothpaste from the tube or has ordered popcorn at a movie theater knows that sometimes a bit of product is left stranded in its packaging and sometimes you get more product than you can consume. But plaintiffs’ lawyers are now trying to make a federal case out of this everyday reality by suing manufacturers for “wasted” products.

A troubling trend is emerging in class-action litigation that threatens manufacturers of every size and type. Lawsuits are claiming that manufacturers are defrauding consumers when a product’s packaging allegedly oversupplies or undersupplies a product. For example, a federal appeals court recently considered allegations that consumers are defrauded when they can’t access the full amount of lip balm contained within its tube.

Related cases involving the medical device sector are also proceeding in the courts. This week, the National Association of Manufacturers’ (NAM) Manufacturers’ Center for Legal Action (MCLA) filed a legal brief opposing a class-action lawsuit claiming that manufacturers of eye droppers for glaucoma medication are defrauding patients because some patients’ eyes cannot absorb the full droplet. The plaintiffs argue that they overpaid for that “wasted” medication and that the manufacturers are liable for fraud.

If the court adopts this baseless theory of liability, it could trigger a new wave of class-action litigation with potentially devastating effects on manufacturers. Any manufacturer whose product packaging allegedly oversupplies or undersupplies a product could find itself the target of a nationwide class-action lawsuit.

Looking beyond product packaging, creative lawyers could argue that companies are injuring consumers through any number of allegedly uneconomical practices, from using suboptimal manufacturing techniques, to employing too many workers, to spending money on ineffective advertising. Any business practice that could be portrayed as inefficient “waste” could be targeted, based on conjecture that greater efficiency might have translated into savings for consumers.

That is why the MCLA is fighting back. The MCLA’s legal brief argues that the plaintiffs failed to establish any real injury and therefore have no right to bring this case, that their claims are preempted by federal law and that allowing cases like these to move forward would invite abusive class-action litigation with no benefit to consumers and grave harm to manufacturers.

Peter Tolsdorf

Peter Tolsdorf is the vice president of litigation and deputy general counsel at the National Association of Manufacturers.

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