Here in San Diego, if you manufacture or package consumer products, your business must be aware of federal and California’s slack fill laws. A good corporate attorney can help you stay current with ever- changing legal requirements.

Slack fill is empty space in sealed packaging. Thus, for example, if you buy some soda in a clear container, you will notice that there is always some empty space at the top of the bottle. That is the slack fill. The concern from consumer advocates is that with slack fill, manufacturers and packagers can mislead consumers; you think you are getting a lot more of the product than you actually are. This is particularly worrisome if the consumer cannot see the product in the packaging at the point of sale. As an example, if you buy a giant box of cereal in a non-see-through container, but then open the box and the box is only half full, you will probably feel cheated.

There is also a competition issue here since, if a giant box of something is the same price as a smaller box, some consumers might buy the giant box thinking they will receive more for their money. Having a large amount of slack fill, therefore, becomes a method of unfair competition.

Furthermore, because of the competitive pressures, excessive slack fill can create sustainability and environmental issues. If your business is losing money because a competitor is using excessive slack fill, your business will probably start adding slack fill capacity. This leads to bigger and bigger packaging and more waste.

As a result, both the federal government and California have enacted slack fill regulations. See 21 C.F.R. § 100.100; Cal. Bus. & Prof. Code, §§ 12606 and 12606.2. Both regulate slack fill and give exemptions or exclusions for what various matters including what is called “functional slack fill.” Some amount of slack fill is often needed and serves a function. Thinking about soda again, the slack fill is needed — is functional — so that some of the pressure from the “fizz” can escape when you open the bottle. Without the slack fill, the soda is more likely to erupt from the bottle. Another example is a bag of snack chips. Generally, consumers like chips that are chips, not broken crumbs at the bottom of the bag. The air in the bag protects the chips from breakage during shipping and shelf placement. Thus, in the case of chips, the slack fill serves a function. The California slack fill law acknowledges these functions and specifically excludes them from the regulations. The list of exclusions/exemption include:

• Product protection
• Slack fill caused by product settling during shipment
• Slack fill caused by machines used in closing/sealing the packaging
• Slack fill caused by the need for the packaging to be a certain size (for labeling requirements, for example)
• Slack fill caused by artistic or other design aspects of the packaging where not misleading
• And more

One problem with the federal and California regulations is that, recently, there have been a lot of class action lawsuits filed by consumers and plaintiffs’ lawyers over the slack fill. This is causing concern and frustration with businesses since litigation is expensive even if the case is dismissed early in the proceedings. To combat the litigation abuses, California amended its slack fill law in November 2018. See Assembly Bill 2632 here.

New exclusions/exemptions have been added including the following:

• Slack fill in packaging not viewed or handled by the consumer — this exclusion covers online sales, for example
• Excludes packaging with a conspicuous “fill line” on the exterior packaging
• Excludes packaging with an “actual size” photo or drawing on the exterior of the packaging

These changes were supported by the California business community and will help tamp down on excessive litigation.

Call San Diego Corporate Law Today

For more information, call corporate attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard’s law practice is focused on business, transactional, and corporate matters and we proudly provide legal services to business owners in San Diego and the surrounding communities. Call Mr. Leonard at (858) 483-9200 or contact him via email. Like us on Facebook.

You Might Also Like:

Legal Services Needed By San Diego Businesses

More “Happy Cows” False Advertising Lawsuits

Update: 2018 California Consumer Privacy Act is Amended

“Made in the USA” Product Labeling

Slave-Labor Product Labeling Requirements