Advertising Law -- February 1, 2012


In This Issue:

  • SPECIAL FOCUS: “Slack Fill” Complaints Increasing in Volume
  • Massachusetts Weighs In on Zip Code Issue
  • CVS to Refund Consumers $5M for Deceptive Pricing
  • NAD Rules in Battle over Baby Food
  • Federal Courts Can Hear TCPA Suits, U.S. Supreme Court Rules
  • Court Puts New Jersey’s Gift Card Law Partially on Hold

Excerpt from SPECIAL FOCUS: “Slack Fill” Complaints Increasing in Volume

Local regulators in California have accused food producers and consumer products manufacturers of violating so-called “slack fill” requirements for product packaging and have commenced a wave of enforcement actions. “Slack fill” is defined as the difference between the actual container capacity and the product volume contained within. The laws under which these cases are brought, the California Fair Packaging and Labeling Act, Cal. Bus. & Prof. Code § 12601 et seq., and Cal. Health & Safety Code § 110375, are designed to protect consumers against the potential deception of so-called “nonfunctional slack fill” – a fancy term describing the empty space in a commodity package that has no legitimate cause or purpose and that might deceive consumers into thinking they are buying more than they are actually getting.

This void space is no small concern to regulators. Violations of the laws can give rise to significant civil, and even criminal, penalties. Regulators can seize products from shelves and force costly packaging and labeling changes. Moreover, as with many California consumer protection requirements, these laws also permit private litigants a basis for class action suits under the California Unfair Competition Law.

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