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California Amends Slack Fill Law

California Amends Slack Fill Law

October 3, 2018

Authored by: Bob Boone and Sarah Burwick

Governor Jerry Brown recently signed into law Assembly Bill 2632, which amended California’s slack fill statute to create several exemptions.  This amendment will be an additional hurdle to the plaintiff bar, which has been flooding the courts with slack fill related lawsuits in recent years.  These lawsuits, typically filed as class actions, allege that product packaging is misleading to the extent it contains nonfunctional empty space, known as slack fill, which causes consumers to believe they are receiving more of the product than they actually are.

The new law, which will amend California Business and Professions Code Sections 12606 and 12606.2, includes the following key changes:

  • 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.” It could be argued that this exempts online sales.
  • The amended law exempts product packaging that clearly

Slack Fill Class Actions Continue to Flood The Courts

As we reported last year, slack fill litigation remains on the rise.  Plaintiffs continue to file consumer lawsuits – typically putative class actions – alleging food packaging is deceptive because it contains empty space, or nonfunctional slack fill, and disguises the amount of product in the package.

This roundup of recent decisions demonstrates that more plaintiffs are getting past early pleading challenges but likely will face significant barriers to success at summary judgment and class certification.

On February 16, 2018, a Missouri federal district court denied Nestlé’s motion to dismiss in Hawkins v. Nestlé USA, Inc., No. 4:17CV205 -HEA, 2018 WL 926130 (W.D. Mo. Feb. 16, 2018) challenging allegations that boxes of Raisinets candy contain 45% nonfunctional slack fill. In its motion to dismiss, Nestlé argued that a reasonable consumer would instantly realize the package was half-empty because of its “maraca-like rattle.” Id. at *5. The court rejected this

Beware the Empty Space – Defending Food Packaging Design Against Slack Fill Claims

April 3, 2017

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There is a recent proliferation of slack fill litigation involving food products – both class and non-class suits. If you are a food manufacturer, distributor or seller, you need to be prepared to deal with these claims. A good starting point, particularly for manufacturers, is to analyze your food packaging designs to determine if and how you can defend them in court, and if not, how you can change your packaging to mitigate your risk against slack fill claims while also preserving the success of your brand. Successful slack fill claims can impose considerable risk, from injunctive relief that disrupts distribution and sales, including product recalls, to the often enormous expense of package design overhauls, which may require you to start all over your branding efforts, to the disgorgement of revenues from sales of violating products.

Slack fill is the difference between the actual capacity of a container and the

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