Too Much Empty Space in Packaging: What is “Slack Fill” and How Can It Lead to Lawsuits?

When the packaging of a consumer product is larger than necessary, that is, when there is unnecessary empty space, the manufacturer may be liable to the consumer. Unnecessary empty space within a product’s packaging is called “slack fill.” 

What laws govern slack fill in California?

Slack fill can be illegal under both state and federal law. The federal government prohibits under-filled product packaging in the Food, Drug, and Cosmetic Act (the FDCA). 21 C.F.R. 100.100. California maintains equivalent laws, with a few key differences. Cal. Bus. & Prof. Code § 12606.2. In 2018, California amended its slack fill law to include additional safe harbor provisions for manufacturers of food products, in Assembly Bill 2632

What constitutes illegal slack fill? 

The essence of illegal slack fill is that the empty space inside the packaging must be “non-functional.” If the manufacturer has a good reason for the empty space, it may not be considered slack fill. Examples of acceptable empty space in packaging include:

  • For protection of the contents.  An example here would be the extra air inside of a bag of potato chips. This extra air is intentionally added by the manufacturer to protect the chips from being crushed.
  • A requirement of the machines used to close the packaging.
  • Unavoidable product settling during shipping and handling. Some products can be filled to the tops of the package when the package is first filled by a machine, but arrive at the store shelves with significant extra space due to settling.
  • The need for the packaging to perform a function. An example here would be a cake mix sold inside a bowl to be used for mixing the cake batter.
  • Food packaged in a reusable container intended to be kept by the consumer as a commemorative gift.  For example, a drink sold in a commemorative cup with cross-promotional tie-ins to a superhero movie; where the cup is intended to be kept and re-used by the consumer.
  • Where the package size must be increased in order to include required information, discourage pilfering, or facilitate handling. An example here might include packages of gum where the nutritional information cannot fit on a small package.

The 2018 California Assembly Bill which added safe harbor provisions includes exceptions for when the product is sold over the internet or in a manner that does not allow the consumer to handle the packaging at all before purchasing. Such sales generally do not constitute slack fill under California law.  The legislature seems to be saying: if you buy online, you are expected to pay closer attention to (and better understand) net weight information. With respect to in-person purchasingi.e. not online—it is generally considered an insufficient defense to slack fill allegations, that the manufacturer accurately listed the net weight or volume of the contents.

Class action lawsuits

Often, the harm any single consumer incurs from purchasing slack filled products would not justify the legal expenses of a lawsuit. This is of course why class action lawsuits exist. The claims of many consumers can be joined together in a single lawsuit if certain requirements are met. One or more of the aggrieved consumers can act as “class representative.” If the lawsuit succeeds as a class action, the court may approve some additional compensation for the class representative for his or her efforts in pursuing the litigation.  

Anthony Lanza & Brodie Smith, litigation and trial attorneys, have developed a focused practice area for slack fill cases, in both state and federal courts. They can be contacted at (949) 221-0490 or here.

The information in this blog post does not constitute legal advice, nor create an attorney-client relationship. Laws constantly change, and this information may become outdated; moreover, the information here is only a limited and general overview and may omit some aspects of law. It is provided for discussion purposes only; not to be relied upon in making real-world decisions. 

©2022 Lanza & Smith PLC. All rights reserved.


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