Makers of body building protein powder continue to face slack fill cases. See, e.g., Compl., Gates v. MusclePharm Corp., No. 3:15-cv-02870-BAS-DHB (S.D. Cal. Dec. 19, 2015). Cases allege that large, opaque containers with a third or more of empty space deceive consumers. Under FDA regulations, foods, dietary supplements, and other commodities will be considered filled as to be misleading if (1) the consumer cannot fully view the contents, and (2) the packaging contains non-functional slack-fill –defined as the empty space in a package that is filled to less than its capacity. The regulations, however, provide exemptions if the slack-fill is due to any of the following:
- Protection of the contents of the package;
- The requirements of the machines used for enclosing the contents in such package;
- Unavoidable product settling during shipping and handling;
- The need for the package to perform a specific function, where such function is inherent to the nature of the food and is clearly communicated to consumers;
- The fact that the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has value which is both significant in proportion to the value of the product and independent of its function to hold the food; or
- The inability to increase the level of fill or to further reduce the size of the package (e.g., where a minimum package size is necessary to accommodate required food labeling).
California has a similar law on slack fill. Companies selling products, such as weight loss shakes, vitamin C and Co Q-10 products, have also faced slack fill cases.