Assembly Bill 2632, which was recently signed into law by Governor Jerry Brown, creates several new exemptions to California’s slack fill law. Slack fill is the empty space between products and their packaging. Public and private litigation over slack fill has been a significant trend within the food and beverage industry over the past several years. Lawsuits alleging fraudulent or misleading “slack fill,” which are commonly filed as class actions, claim that product packaging is misleading because it contains empty space that plaintiffs assert is nonfunctional. This is alleged to cause consumers to believe that they receive less product than is actually in the product packaging.
The new law, which amends California Business and Professions Code Sections 12606 and 12606.2, makes the following important changes:
- The law adds the clarification that “nonfunctional slack fill is the empty space in a package that is filled to substantially less than its capacity for reasons other than any one or more of the following:…” While “substantially” is not defined in the amended law, this may open an argument that some degree of non-functional space is acceptable, provided it is not substantial.
- The amended law adds a section that states “[s]lack fill in a package shall not be used as grounds to allege a violation of this section based solely on its presence unless it is nonfunctional slack fill.”
- The amended law exempts packaging sold in a mode of commerce that “does not allow the consumer to view or handle the physical container or product.” This provision appears to exempt online sales.
- The amended law exempts product packaging that clearly and conspicuously depicts the product “fill line” on exterior packaging or the immediate product container, if visible at point of sale. The “fill line” must be clearly and conspicuously depicted. If the product is subject to settling, the fill line must represent the minimum amount of expected settling.
- Containers are now exempt where “[t]he actual size of the product or immediate product container is clearly and conspicuously depicted on any side of the exterior packaging, excluding the bottom, accompanied by a clear and conspicuous disclosure that the depiction is the ‘actual size’ of the product or immediate product container.”
- Additionally, containers that show “[t]he dimensions of the product or immediate product container are visible through the exterior packaging” are also exempt from the California slack fill law.
These changes are anticipated to provide additional relief from slack fill litigation that has flooded the courts in recent years.