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Finally Fed Up with Private Plaintiffs Litigating over Empty Space, California Amends Slack Fill Law

Reproduced with permission from the WLF Legal Pulse Blog.

Guest Commentary

By Robert S. Niemann, a Partner with Keller and Heckman LLP in the firm’s San Francisco, CA office, and Jill M. Mahoney, an Associate in the firm’s Washington, DC office.

Editor’s note: This blog is an update to the February 2, 2018 WLF Legal Backgrounder, “Litigating over Empty Space: Public and Private Plaintiffs Target Consumer Class Actions at “Slack Fill.”

Defendants of would-be “slack fill”1lawsuits may have found some reprieve from litigation in California. On September 19, 2018, California Governor Jerry Brown signed into law Assembly Bill 2632, which amends the state’s slack fill law2 to provide manufacturers facing nonfunctional slack fill allegations with additional safe harbors. While specious slack fill lawsuits have been on the rise in recent years, the amendment is a step forward for the food manufacturing industry and demonstrates that California, the home to many slack fill suits,3 may also be growing tired of such claims.

Understanding California’s New Slack Fill Safe Harbors

As background, California law states that “no container shall be made, formed, or filled as to be misleading.” Section 12606(b). Further, the law states that “a container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack fill.” Whereas slack fill is the difference between the actual capacity of a container and the volume of the product, nonfunctional slack fill is “the empty space in a package that is filled to substantially less than its capacity” for reasons other than the enumerated exemptions provided in the Code. The amendment added to the list of exemptions several circumstances in which slack fill would not be deemed “nonfunctional”:

  • When the dimensions of the product or immediate product container are visible to the consumer through the exterior packaging.
  • By clarifying an existing non-functional slack fill exemption for products in which the “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.” For products with multiple units of the same product in a package, “only one ‘actual size’ depiction is required per same size product or immediate container.”
  • Through the modification of an existing non-functional slack fill exemption for product packaging with a “line or graphic that represents the product or product fill and a statement communicating that the line or graphic represents the product or product fill such as ‘Fill Line,’ both of which are clearly and conspicuously depicted on exterior packaging or the immediate product container if visible at point of sale.” For products subject to settling, the line is to represent the minimum amount of product after settling.
  • By exempting packaging sold in a “mode of commerce that does not allow the consumer to view or handle the physical container or product.”
  • By extending the above-listed exemptions to food containers that are subject to regulation under the Federal Food, Drug, and Cosmetic Act (FD&C Act).

The exemption for packaging sold in a “mode of commerce that does not allow the consumer to view or handle the physical container or product” is arguably intended to exempt online sales and delivery. Over the past decade, commerce has been driven by the online marketplace, specifically by companies like Amazon, where consumers purchase items over the internet, without physically interacting with the product or product packaging prior to purchase. The change in purchasing behavior and the desire to protect this new mode of commerce from an onslaught of slack fill litigation may have catalyzed California’s amendment.

The “mode of commerce” exemption recognizes that plaintiffs should not be able to sue online retailers claiming deceit, because (1) a consumer cannot be misled or deceived by product packaging that they did not physically handle or manipulate prior to purchase, and (2) online retailers should not be held liable for product packaging they did not design or implement. For example, an online marketplace that sells and ships a third-party seller’s product that was packaged by the third-party seller should not be named a defendant in a slack fill lawsuit because the online marketplace was not responsible for the creation of the alleged slack fill.

Over the years, defendants have argued in court for similar safe harbor provisions, but without the codification of such language, their arguments were often unsuccessful. California’s amendment is a positive sign that slack fill lawsuits, which comprise approximately 12% of consumer-product-fraud litigation, may be on the decline with the help of these safe-harbor provisions. Nonetheless, the amendment shows that even California’s government is tired of these lawsuits and willing to cut food manufacturers some slack.


  1. As a reminder, slack fill is non-functional empty space in product packaging and is often the target of deceptive or misleading packaging lawsuits.
  2. Assembly Bill 2632 amends California Business and Professions Code, §§ 12606 and 12606.2. Section 12606 pertains to non-food commodities governed under California’s Fair Packaging and Labeling Act (FPLA) and containers holding food, drugs, devices, and cosmetics subject to California’s Sherman Food, Drug, and Cosmetic Law. Section 12606.2 pertains to food containers subject to § 403(d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 343(d)), and § 100.100 of Title 21 of the Code of Federal Regulations.
  3. For example, the U.S. District Court for the Northern District of California (dubbed the “Food Court”) is home to more than 33% of the cases filed, arguably making California the state with the biggest share of slack fill cases.