In the action, for which Diesch, who is an associate at Kronick, Moskovitz Tiedemann & Girard, prefers not to reveal the company name, a store-branded line was fined $250k by four California District Attorneys after the retailer and owner of the brand was accused of misrepresenting product sizes of its store-branded cosmetic products.
Specifically the lawsuit stated that the products were found to be taking advantage of the “use of oversized and non-functional slack-fill and/or false sidewalls and/or false bottoms”.
Settlement is one of many targeting slack-fill
This settlement is one of many targeting manufacturers of cosmetic and personal care products marketing products that give an impression that the packaging might contain more formulation than it actually does.
Most recently, P&G and Unilever have been hit by lawsuits accusing them of marketing deodorants that make use of packaging that could deceive consumers to believe that the actual deodorant sticks contained within are larger than they really are.
Diesch explains that the law pertaining to slack-fill in California is governed by Code 12606(b), which determines the difference between the actual capacity of the container and the volume of product it contains.
“Simply put, the space in packaging not occupied by the product. While some slack fill is permissible, non-functional slack fill is not,” said Diesch.
“The problem for companies arises in the subjective manner in which enforcement and evaluation of non-functional slack fill occurs. For example, I have seen District Attorneys claim that the space taken up by the thick walls of a glass container or the space occupied up by the components of an airless pump constitutes impermissible nonfunctional slack fill. In other words, the space in the bottle or packaging not actually occupied by the cream.”
California leads the way on slack-fill regulation
In California, which has been one of the most reactive states to the issue of slack-fill, regulations were updated in 1997 to address the issue, with A.B. 1394 stipulating the dimensions of the actual product had to be visible through the packaging.
Diesch believes this regulation kept things under control until around 2012, when California District Attorneys once again began challenging cosmetic companies’ packaging, leading to the 2013 law SB465, which specifically redefined non-functional slack-fill.
It specified “empty space in a package that is filled to substantially less than its capacity” was grounds for a violation, unless it is for functional purposes.