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December 12, 2019

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California Provision Goes Slack re: Food Law

Federal law preempts California slack fill challenges for USDA-regulated products.

  • Under the California Fair Packaging and Labeling Act, companies can be challenged for including “nonfunctional slack fill” in product packaging.  Slack fill is the empty space between products and their packaging, and the goal of California’s requirements is to prevent consumer deception when products are packaged in containers that are larger than necessary for any technical reason related to packaging and shipping.  California is very active in enforcing its slack fill requirements.  In 2012, several counties threatened enforcement action against a company’s meat and poultry products for alleged violations of the state’s nonfunctional slack fill provisions.

  • The Ninth Circuit now has ruled that California’s nonfunctional slack fill provision is preempted as it relates to meat and poultry products.  In its ruling, the court found that the legislative history of the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) showed Congressional intent to create a uniform national labeling standard for meat and poultry products.  The three-judge panel concluded that the “same concern about uniformity applies to the packaging standards [in the instant case] and counsels against allowing the states to develop variant standards.”  Although the FMIA and PPIA contain no express requires related to nonfunctional slack fill, USDA regulations prohibit products from being sold in packages or containers that are filled in a “misleading” manner.  The Ninth Circuit found express federal preemption of the state requirements in this case.

  • The preemption ruling applies only to meat and poultry products, which are subject to stringent USDA standards and label pre-approval.  Although the case may be a welcome relief to processors of USDA-regulated products in California (and states that similarly attempt to enforce slack fill requirements in this area), the marketers of FDA-regulated food products must remain vigilant.

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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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