In the last few years, food and beverage companies have been defending against a new trend of claims related not to the products they manufacture, but the packages in which the products are sold. Recently filed class action complaints allege that food and beverage manufacturers are reducing the amount of product inside opaque containers but not reducing the size of the containers, or that the manufacturers do not adequately fill the containers. Classic examples include bags of chips or boxes of rice with extra container space that is only visible once the package is open.
This extra space is known as “slack-fill.” The US Food and Drug Administration (FDA) defines slack-fill as the difference between the actual capacity of a container and the volume of the product contained therein. 21 C.F.R. § 100.100. Under the FDA’s regulations, 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.” Id. The FDA recognizes that some slack-fill does have a purpose. Thus, functional slack-fill, such as the extra space that is intended to help protect the contents of the package or that is the result of unavoidable product settling, is exempt from the FDA’s regulations. See id. The State of California also prohibits nonfunctional slack-fill in food packaging, but defines “nonfunctional slack-fill” as the empty space in a package that is filled to “substantially” less than its capacity. Cal. Bus. & Prof. Code §§ 12606, 12606.2.