As many of our readers know, slack fill litigation has increased within the food and beverage industry over the past several years. Approximately 300 slack fill cases were filed between 2016 and 2017, principally in California and New York.
By definition, “slack fill” is the difference between the actual capacity of a container and the volume of product contained inside. A container with slack fill that serves no functional purpose, i.e. “nonfunctional slack fill,” could be subject to lawsuits under the Federal Food, Drug, and Cosmetic Act (FDC Act) and relevant state regulations. The basis for these claims is that nonfunctional slack fill allegedly renders the product packaging misleading to consumers, because it causes them to think that they are getting more of the product than they actually are.
A crucial question in slack fill litigation is whether the slack fill in question is truly “nonfunctional.” Under federal law, empty space in food containers is considered “nonfunctional” unless it falls within one of six exceptions:
- Protection of the contents inside the package
- Result of the machines used to enclose the contents
- Result of unavoidable product settling
- Necessary to perform a specific task (e.g. cake mix packaged in a bowl that is to be used in mixing the cake batter)
- Food packaged in a reusable container where the container is a part of the presentation and also serves a useful purpose independent of the function to hold food
- The inability to increase the contents or reduce the package size (e.g. a certain size package is necessary to carry all the required label statements, discourage shoplifting, or facilitate handling the product).
21 C.F.R. § 100.100. California law includes similar exceptions for food containers.
On September 19, 2018, California Governor Jerry Brown signed an amendment to the slack fill law that provides additional protection to manufacturers facing specious slack-fill allegations. The amendment added the following circumstances in which slack fill will not be considered “nonfunctional”:
- Where the consumer can see the dimensions of the product or immediate product container through the packaging.
- Where a clear and conspicuous depiction of the actual size of the product or immediate product container appears anywhere (except on the bottom) on the outside container
- Where a product fill line or other indication on the container demonstrates the minimum amount of product (i.e., fill line after maximum settling)
- Where “[t]he mode of commerce does not allow the consumer to view or handle the physical container or product.”
This last exception logically recognizes that a consumer cannot be misled by slack fill when the consumer does not see the package size at the time of purchase, and appears to exempt on-line sales from application of California’s law prohibiting nonfunctional slack fill
Similar amendments were made to the statute regarding slack fill for non-food containers. Hopefully, these much needed additional safe harbors will reduce the number of actions filed against manufacturers.