25
THE BIG PICTURE
By Sterling Anthony, CPP, Contributing Editor
Read Part One of Sterling Anthony’s Series on slack-fill lawsuits.
Reducing Risk for Slack-fill Packaging Lawsuits: Part Two no burden on the consumer to calculate and convert. Another Last month’s article concluded with this communication feature is graphics, useful for those products that lend distinction: a defense strategy is reactive. themselves to being depicted as, “actual size.” Text and graphics can Instead, a proactive approach—with its focus on lawsuit avoidance— explain and counter what might otherwise be regarded as misleading, should be a component of packaging management. non-functional slack-fill. That’s literally the case with packaging that Avoidance rests on compliance with federal regulations, which states something to the effect of, “Some settling of the contents might preempt state regulations if there is meaningful variance. The federal have occurred during distribution.” regulations are the Food, Drug, and Cosmetics Act (FDCA) and the All of the preceding discussion notwithstanding, slack-fill Code of Federal Regulations Title 21 (21CFR §100.100). The FCDA considerations should not be a stand alone component of packaging establishes misleading fill levels as misbranding. management. Yes, slack-fill considerations can prompt varying 21CFR §100.100 defines slack-fill as the difference between degrees of package redesign, but they also should be a factor in a container’s capacity and its contents. 21CFR §100.100 further new package design. With food and beverage, especially, packaging establishes misleading fill-levels as occurring when the container professionals are aware of regulations governing product-packaging doesn’t allow a view of the contents and contains non-functional interactions and the like. Because the increase in slack-fill lawsuits is slack-fill. 21CFR §100.100 deems slack-fill as non-functional if it does of recent vintage, however, they’re likely less not fall under any of six exemptions. If the slack-fill in question offers product Because the increase in slack- top-of-mind. That needs to change. management involves tradeprotection, is required by machinery, accounts fill lawsuits is of recent vintage, offsPackaging among the competing, sometimes for product settling, or performs a specific they’re likely less top-of-mind. conflicting interests of other disciplines. The task, it’s exempted. Also, if the slack-fill in the discipline most implicitly, if not explicitly container functions in product preparation, That needs to change. invoked in slack-fill lawsuits is marketing. presentation, or is reusable; or if the brand is Slack-fill lawsuits, in the main, allege that the packaging, as a unable to increase contents or reduce container size, it’s exemtped. marketing tool, is being used misleadingly, denying the consumer Evaluating a company’s exposure to slack-fill lawsuits can be the opportunity to make an informed decision. It follows, therefore, straightforward, much like a flowchart or a box-checking list. Does that packaging and marketing (along with legal) should collaborate in the packaging disallow a view of the contents? Is there slack-fill? Is crafting a proactive approach to slack-fill lawsuits. the slack-fill non-functional? When all answers are, “Yes,” a company Lacking an intent to mislead does not shield a company from needs to decide on a course of action. slack-fill lawsuits. An example is the oft-utilized promotion of offering One course of action is not to do anything at all. The risk of such a stated-percent bonus quantity. When the bonus quantity comes in a decision is product specific. For example, a company might regard the same size container as that of the traditional quantity, it might an established brand with a history of repeat purchases as prima facie give credence to an allegation that the difference between the two evidence that consumers are not being misled by alleged slack-fill. quantities equates to non-functional slack-fill. Affirmatively, however, a company can choose corrective measures. And while packaging and other disciplines are at it, they should Here, too, product-specific considerations should be considered. The broaden their concerns to include other company practices that might objective should be to achieve compliance and to cost-effectively be regarded as misleading, even if they are not illegal. One such practice minimize or eliminate legal exposure. is the de facto price increase [sometimes called “shrinkflation”] achieved What is the best way to allow a view of the contents, for example? by keeping the packaging the same size but reducing the contents. At Switching from an opaque container to a clear one, although press time, there’s talk of a possible recession (more on page 34). That’s seductively suggestive, might be costly and disruptive from an a scenario that makes overt price increases risky. Even if a de facto price operations standpoint. If the container is made of opaque plastic, increase doesn’t produce slack-fill large enough to trigger lawsuits, the a clear fill-strip might suffice. A paperboard carton might have its practice won’t go unnoticed by those who are vigilant about such matters deficiency corrected with a display window. Lastly, does a clear plastic beverage bottle, sporting a reasonable Whether misleadingly or not, packaging communicates through fill-height, have a place in a discussion about slack-fill lawsuits? Yes, its size. While size matters, another means of communication is text, given that the bottle has a convex bottom that reduces capacity while which can serve in lieu of dimensional changes. Text can be used giving the impression of fullness. Who’s to say, in these litigious times, to state such particulars as quantity, count, net weight, and serving that practice someday won’t be the subject of a lawsuit? PW size. It should be done prominently and unambiguously, imposing
BigPicture_0622.indd 25
5/24/22 15:06
