California moves to curb slack-fill litigation

We’ve posted often about lawyer-driven slack-fill lawsuits, in which class action filers claim that food, cosmetic, and other products sold by weight have excessive empty space in their packaging. (Laws governing food packaging allow for empty space that serves a function such as protecting the product from damage or shoplifting, but there is room for much disagreement on what is or is not needed for functionality.) The suits’ outcomes can seem random if not whimsical: Ferrara Candy recently agreed to pay $2.5 million to settle claims [Douglas Yu, Confectionery News] while the makers of Fannie May and Junior Mints successfully obtained dismissal of suits against them in federal courts [Scott Holland, Cook County Record; Bloomberg]

California has been a hotspot of slack-fill litigation, but now the California legislature has passed a bill, signed into law by Gov. Jerry Brown in September, expanding the list of safe-harbor defenses that manufacturers (prospectively, in future suits) can assert against slack-fill claims. While the changes are limited in scope and will still allow many suits to go forward, it is noteworthy for California’s legislature to take even symbolic steps against the state’s busy class action industry. [Sarah L. Brew, Tyler A. Young, Emily R. Bodtke and Rita Mansuryan, The Recorder; Robert Niemann and Jill Mahoney, Washington Legal Foundation]

One Comment

  • There is an expression: fool me once shame on you, fool me twice shame on me. If you buy a bag of chips and feel cheated, don’t buy them again. None of these items is big-ticket. One of the big reasons manufacturers make packaging bigger than strictly necessary is to get your attention. If a bottle of low-dose aspirin was the minimum size to hold the product, you would not be able to read the label from more than a foot away and it would be the size of a match box (for those old enough to remember those). It would be lost on the shelf.
    I am also stunned they passed this. In general Calif is anti-business.

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