In what seems like an uncharacteristic move for the historically consumer-friendly state, California recently added new safe harbors protecting product manufacturers from claims of “slack fill” in packaging, signaling a dwindling receptivity to the recent spurt of slack fill litigation in that state.

Amendments to California's Slack Fill Law

California prohibits nonfunctional slack fill (empty space) in food containers that do not allow the consumer to fully view their contents, see Cal. Bus. & Prof. Code Sections 12606(b), 12606.2(c). Slack fill is considered “nonfunctional” if it does not serve some purpose. For example, the slack fill in a bag of potato chips is functional because the air cushion is necessary to stop the chips from breaking in transit.

California's slack fill law, the Fair Packaging and Labeling Act (FPLA), recognizes several valid reasons for slack fill in food containers. Prior to the most recent amendment, the FPLA tracked federal FDA regulations recognizing six valid reasons for slack fill, commonly referred to as safe harbors or exemptions:

• Protection of the contents of the package;
• The requirements of machines used to package the product;
• Unavoidable settling during shipping and handling;
• The need for the package to perform a function in the preparation or consumption of food;
• The food being packaged in a reusable container that is part of the presentation and has independent value; and
• The package size being necessary to accommodate required food labeling, discourage pilfering, facilitate handling, or accommodate tamper-resistant devices.

Despite these safe harbors for functional slack fill, slack fill litigation has accelerated in recent years, with plaintiffs filing over 300 slack fill cases since 2016. California, along with New York, is one of the most popular forums for these lawsuits.

In California, the industry responded to the growing litigation with Assembly Bill 2632, aiming to provide manufacturers and retailers greater clarity and certainty about when slack fill is allowed. AB 2632 ultimately expanded the list of safe harbors for slack fill to add:

• Products whose dimensions are visible through the exterior packaging;
• Products whose exterior packaging clearly and conspicuously depicts the actual size of the product with a disclosure that the depiction is the actual size of the product (for products with multiple units, only one “actual size” depiction is required);
• Products that clearly and conspicuously display a line or a graphic representing the product fill with a statement that the line or graphic represents the product fill, such as “Fill line,” which must represent the minimum amount of product after settling; and
• Products whose mode of commerce does not allow the consumer to view or handle the physical container or product, see AB 2632, codified at Cal. Bus. & Prof. Code Section 12606.2(c)(7)-(8).                                                                                                                                                                                                                                                                                                          The bill passed unanimously through California's legislature, and California Gov. Jerry Brown signed it on Sept. 19.

Impact on Slack Fill Litigation

The new law adds to the food manufacturer's arsenal of defenses against slack fill lawsuits. While recent federal California decisions have made slack fill claims more difficult for plaintiffs to win, see, e.g., Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016), the new statutory protection adds another obstacle for slack fill plaintiffs. Whereas the preexisting safe harbors recognized various circumstances where slack fill is necessary or reasonable (and thus not “nonfunctional”), the new law shields products with slack fill regardless of the reason as long as the packaging clearly and conspicuously discloses the product contents by graphics and words on the outside of the packaging. Food manufacturers can use the new law to seek dismissal if their product meets the safe harbor's disclosure requirements.

But the new safe harbors may not guarantee immediate dismissal of slack fill claims. First, the statutory amendments do not apply retroactively. Second, the safe harbors for “clear and conspicuous” disclosures may simply foster litigation over whether the disclosure is accurate and meets statutory requirements. Indeed, many slack fill lawsuits have already survived the motion-to-dismiss stage simply by alleging the alleged slack fill is nonfunctional, even where the defendant presents evidence that the slack fill falls within one of the statutory safe harbors. See Kline v. Iovate Health Sciences USA, 2017 WL 1135580, at *2 (S.D. Cal. Mar. 27, 2017); Gordon v. Tootsie Roll Industries, 2017 WL 8292777, at *5 & n.2 (C.D. Cal. Jul 31, 2017). That same trend may continue with the new safe harbors.

In addition, the new safe harbors may generate litigation over whether they are federally pre-empted. The FPLA provides that its requirements are not operative if they do not impose the same requirements as the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 343(d)). See Cal. Bus. & Prof. Code Section 12606.2(f). That FPLA provision complements the federal preemption provision, which provides that no state may establish any requirement for the labeling of food that is not identical to the federal requirements. California's newly added safe harbors are not present in federal law, potentially creating a conflict between federal and state law. In the context of food labeling, however, federal pre-emption generally applies only when states attempt to impose requirements greater than those required by federal law. California's new slack fill law does not actually impose any “requirements” on food manufacturers, meaning federal preemption may not apply. Regardless, the preemption issue leaves room for plaintiffs' counsel to challenge the new exemptions.

While California's new law might not defeat slack fill claims automatically, the legislation undeniably makes it harder for plaintiffs attorneys to bring successful slack fill claims—or will at least make them think more carefully about which packaging they challenge. More broadly, the new legislation signals a dwindling receptivity to slack fill litigation in historically consumer-friendly California. The additional obstacles imposed by the law may drive plaintiffs attorneys to file slack fill lawsuits in other forums that have fewer statutory safe harbors. That trend, in turn, may motivate other states to follow California's lead and adopt additional safe harbor provisions to stem the tide of slack fill lawsuits.

Sarah L. Brew, a partner with Faegre Baker Daniels in the firm's Minneapolis office, focuses her practice on defending food industry clients against labeling and class action consumer fraud claims and representing food processors, distributors and retailers in food-borne illness and contamination cases and supply chain disputes.

Tyler A. Young, an associate with the firm, litigates high-stakes matters for technology companies and companies operating in highly regulated industries. 

Emily R. Bodtke, an associate with the firm, defends food and agribusiness industry clients and medical device manufacturers as a member of the firm's products liability practice.

Rita Mansuryan is a legal clerk at the firm.