Beware of Slackers in Packaging

Laws prohibiting “nonfunctional slack-fill” in food and other packaging have been on the books for years, but have gone largely unnoticed. Recently, however, plaintiffs’ attorneys and district attorneys have brought the issue to prominence by initiating numerous lawsuits against manufacturers of various consumer products, including food and beverages. Thus, any food and beverage producer should be aware of the laws and regulations governing non-functional slack-fill.

As discussed below, the bottom line here is that a company should be careful before it sells a product in which the packaging is noticeably larger than the food or beverage that it contains.

The Regulatory Framework

Regulations under the federal Food Drug and Cosmetics Act provides that “a food shall be deemed to be misbranded if its container is so made, formed, or filled as to be misleading.” 21 C.F.R. §100.100. The regulations further provide that a container that does not allow the consumer to fully its view contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill.

The regulations define “slack-fill” as “the difference between the actual capacity of a container and the volume of product contained therein.” The regulations further define “nonfunctional slack-fill” as “the empty space in a package that is filled to less than its capacity for reasons other than:

(1) Protection of the contents of the package;

(2) The requirements of the machines used for enclosing the contents in such package;

(3) Unavoidable product settling during shipping and handling;

(4) The need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of a food), where such function is inherent to the nature of the food and is clearly communicated to consumers;

(5) 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, e.g., a gift product consisting of a food or foods combined with a container that is intended for further use after the food is consumed; or durable commemorative or promotional packages; or

(6) Inability to increase level of fill or to further reduce the size of the package (e.g., where some minimum package size is necessary to accommodate required food labeling (excluding any vignettes or other non-mandatory designs or label information), discourage pilfering, facilitate handling, or accommodate tamper-resistant devices).”

Conclusion

To avoid this potential liability, manufacturers should carefully consider the six safe harbors above when designing a product package, including making the container transparent. Clearly communicating actual product contents or volume and disclosing the reasons for slack-fill on the face of the package is also helpful. Manufacturers should also monitor and respond to consumer complaints. Because defenses to a slack-fill claim can be fact intensive, it is a best practice for manufacturers to maintain documentation demonstrating a functional purpose to any slack-fill.

Royse Law Firm
royse@rroyselaw.com
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