On September 19, 2018, (former) Governor Jerry Brown signed Assembly Bill 2632 into law, creating new safe harbors and presumably making it harder for plaintiffs to successfully pursue “slack fill” lawsuits in California. “Slack fill” is the nonfunctional empty space in product packaging, which plaintiffs often allege misleads consumers into thinking that they are purchasing more product than they actually receive.

The new law amended California Business and Professions Code Sections 12606 (non-food products) and 12606.2 (food products), to exempt from the definition of nonfunctional slack fill the following:

• Online sales: packaging sold in a way that “does not allow the consumer to view or handle the physical container or product.”
• Fill-line containers: packaging that, at the point of sale, “clearly and conspicuously” depicts the “fill line.”
• “Actual size” food containers: food containers for 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), if accompanied by a disclosure that the depiction is the “actual size” of the product or immediate product container.
• Note: this exemption previously was applicable to only non-food items.
• See-through packaging: food containers for which the dimensions of the product or immediate product container are visible through the exterior packaging.
• Note: this exemption also previously was applicable to only non-food items.

Although Sections 12606 and 12606.2 do not contain a private right of action, they often are predicates for California Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA) suits.

Since AB 2632 went into effect, about a dozen new slack-fill cases have been filed in California state and federal courts. The majority of these cases concern opaque packaging, which plaintiffs allege prevents them from directly seeing or handling the product, thereby leading a reasonable consumer to believe that the package contains significantly more product than it actually does. See, e.g., Kinder v. Woodbolt Distribution LLC, 18-cv-2713, Doc. 1 (S.D. Cal. Nov. 30, 2018) (alleging that the defendant’s pre-workout powders sold in opaque containers conceal the amount of product actually packaged); Matic v. United States Nutrition Inc., 18-cv-9592, Doc. 1 (C.D. Cal. Nov. 14, 2018) (alleging that the defendant’s protein powders are comprised of 40% empty space constituting nonfunctional slack fill).

To minimize the chances of facing similar slack fill class actions, companies should consider designing product packaging to take advantage of one or more of the above safe harbors. Operating within a safe harbor greatly increases the chances of a slack-fill suit being dismissed. See, e.g., Ebner v. Fresh, Inc., 838 F.3d 958, 967–68 (9th Cir. 2016) (“This cannot constitute ‘slack fill’ because under the plain language of the statute, slack fill means the portion of the container without product, i.e., empty space. Thus, the lip product falling below the stop device does not meet the definition of actionable slack fill. The district court correctly concluded that the FAC fails to allege a violation of § 12606(b).”). For example, companies may wish to avoid opaque product packaging unless it also uses a fill line or depicts and discloses the actual size of the product within the package. When using a fill line, companies also should consider setting the line at the lowest possible point to account for product settlement.

If you have any inquiries regarding specific product or case questions, please contact the authors listed on the right.

DISCLAIMER: This article is not intended to provide legal advice or reference any specific client or matter, and should not be relied on as legal advice or a confidential, attorney-client communication.