Food for Thought: Food Industry Decisions with Bite

Food for Thought: Ninth Circuit Holds California’s Nonfunctional Slack Fill Regulations for Meat and Poultry Are Preempted by Federal Law

Mass Tort and Product Liability   |   February 12, 2016
Del Real, LLC v. Harris, 636 Fed. Appx. 956 (9th Cir. Feb. 12, 2016)

California enacted statutory prohibitions against nonfunctional slack fill, which is the empty space between a product and its packaging that serves no specified purpose. The California Attorney General appealed a permanent injunction banning enforcement of that prohibition against a producer of heat-and-serve meat and poultry products.

The Ninth Circuit affirmed the detailed decision of the district court in Del Real, LLC v. Harris, 966 F. Supp. 2d 1047 (E.D. Cal. 2013). In a brief, not-for publication decision, the Ninth Circuit held that, "as applied to meat and poultry products, California’s nonfunctional slack fill provisions are expressly preempted by the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) because they are ‘in addition to, or different than’ 21 U.S.C. §§ 467e, 678, the federal statutes’ general prohibitions against containers ‘filled as to be misleading’.…"

The court rejected California’s argument that it prohibited only a subset of conduct already prohibited by the FMIA or PPIA. First, Congress intended to create uniform national labeling standards, which "counsels against allowing the states to develop variant standards." Second, Congress allowed meat and poultry packaging to be subject to "a lesser level of regulation" than other products.

The court’s decision emphasized in conclusion that "[n]othing in this disposition should be read to prevent California from exercising its concurrent authority under both the FMIA and PPIA to address misleading packaging of meat and poultry products."

©2023 Carlton Fields, P.A. Carlton Fields practices law in California through Carlton Fields, LLP. Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form via the link below. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.

Subscribe to Publications


The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.