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.
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