The California legislature has passed a law amending the state’s slack-fill statute for food containers subject to the Federal Food, Drug and Cosmetic Act (FFDCA). Assembly Bill 2632 (AB 2632), which Governor Jerry Brown signed into effect on September 19, 2018, revises the slack-fill statute by creating four new so-called “safe harbor” provisions, under which empty space in a container is not considered nonfunctional slack-fill. These new safe harbor provisions provide additional clarity on the types of food packages that will not be considered to contain nonfunctional slack-fill and may provide some relief to the food industry from the recent surge in purported class law suits seeking damages for allegedly slack-filled packaging. This memorandum summarizes the changes to the state slack-fill statute.
