October 20, 2015

California’s “Slack-Fill” Law & Deceptive Product Packaging

Is your product packaging at risk?

In June of this year, Proctor & Gamble (P&G) agreed to settle a civil protection lawsuit in the amount of $850,000. The civil complaint alleged that P&G’s packaging violated California’s Business & Professions Code Section 12606.2, which prohibits a container or package from having false bottoms, false sidewalls, a false lid or covering or to facilitate the perpetration of deception or fraud. A container that does not allow a consumer to fully view its contents violates the law if the container or package contains “non-functional slack fill”, which is the difference between the actual capacity of a container and the volume of product contained in it.

The slack fill law, which has been around for decades, is often prosecuted by the County District Attorney’s office with the County’s Weights and Measurements office under California’s Competition Law and False Advertising Law. Penalties are usually injunctive relief (change of packaging), civil penalties, and fees. Unfortunately, the law has become problematic for companies doing business in California due to the subjective nature of the enforcement. There are no standards for what is functional versus non-functional nor for penalties and fees set. In 2013, California Governor Jerry Brown approved AB 465 that enacted 15 provisions for the use of “substantially” empty space in instances such as protection of the contents, unavoidable product settling, space for mandatory labeling, etc.

Slack fill cases cover consumer products from food products to candy to OTC drugs. Novartis Pharmaceuticals was issued a complaint alleging oversized packaging for its eye drops, which alleged misled consumers by having a “substantially empty” box that was far larger than the bottle inside. The complaint cited, ““The products were sold in large boxes disproportionate to the small amount of product contained therein, and the product was not viewable to the consumer, and the interior of the packages had false walls or inserts.”

In the P&G case, the complaint alleged the use of over packaging with P&G’s Olay line of products. P&G agreed to change the packaging of the entire line and will pay the penalty.

Companies selling consumer products within California need to be aware of the slack fill law. Not only does the D.A.’s office file complaints, but private citizens may bring class action suits against a company.

The law firm of Arnold & Porter has these suggestions to avoid slack fill liability:
1) Design packaging to meet the provisions established in AB 465.
2) Fill containers as much as practically possible.
3) Make contents fully visible when possible.
4) Consider “fill line” or representation of actual size on packaging.
5) Avoid hidden compartments or unnecessary packaging that cannot be seen.
6) Track consumer complaints to spot problems early on.

Pak West

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