Understanding Packaging Law

Packaging professionals are easy to define. Packaging law, not so much.

Packaging professionals have no identity crisis. They think of themselves as what they are: regulatory affairs professionals, or packaging engineers, or packaging managers, or attorneys, or regulatory professionals, or as the person at their company with responsibility for all that. The "packaging industry" is really a diverse group of many different industries, but with shared interests and concerns.

Packaging professionals also know they are repeatedly buffeted and battered by changing legal requirements. These mandates come from a seemingly endless variety of federal, state, and local lawmakers and regulators, and cover a vast and ever-changing range of topics.

A nonlawyer's study of packaging law should be the beginning, not the end, of his or her learning. Attorneys, or consultants, will still be necessary for proper handling of many legal questions and problems.

Packaging, for present purposes, is defined as a physical object or combination of objects that encloses products in some form of container in order to achieve one or more purposes, including containment, protection, identification, communication, and ease of handling and use. This definition is loosely derived from the Glossary of Packaging Termspublished by the Packaging Institute International, a forerunner of today's Institute of Packaging Professionals.

To describe the legal requirements applicable to packaging, I have identified 10 axioms, or self-evident truths. Together, they summarize the form of packaging law.

1. Packaging Law is Labeling Law

Perhaps the most commonly recognized area of packaging law, labeling encompasses product-specific requirements like food labeling, drug labeling, hazardous material labeling, consumer product warnings, and so on. In addition, it encompasses requirements with broad application, like those of the Fair Packaging and Labeling Act, that cover all consumer goods.

2. Packaging Law is Environmental Law

The phrase "packaging law" often evokes environmental law, with good reason. Packaging has been the target of numerous bills and laws that try to address solid waste. Attention to the solid-waste bills on the state and federal levels will necessarily tell you a lot about packaging law.

3. Packaging Law is Structural Requirements

Examples include child-resistant, tamper-evident and hazardous material containment features.

4. Packaging Law is Science and Fact-based

The legal requirements applicable to packaging often are based on complex technological information. Hard science is everywhere you turn in the packaging world. Packaging materials are chosen for properties like strength, lightness, and oxygen-transfer, and their ability to be formed. Consumer studies help determine the most readable type styles for labels. Landfills are the province of trained engineers, not wistful mountain men out to save the planet. At their best, the requirements are sensible in light of the scientific facts.

5. Packaging Law is Regulatory Law

Regulatory agencies are the source of many, perhaps most, of the legal requirements packagers face. Federal agencies like the Federal Trade Commission, Food and Drug Administration, Department of Agriculture, Department of Transportation, and their state counterparts are the entities a packager contends with most. Occasionally, the federal or state legislature passes a law affecting packaging, but even then, implementation is left to regulators, who develop and enforce regulations to carry out the legislative commands. The regulatory rulemaking process provides a golden opportunity for input to oppose or help shape the terms of a regulation. This opportunity for input is often just as valuable as an expensive lobbyist's access, but simpler and much cheaper to exercise.

6. Packaging Law is Intellectual Property Law

The laws that govern rights in "intellectual property"-patents, trademarks, copyrights, trade dress-guide much about package structure, design, and labeling. Civil lawsuits between companies often result from disputes over these valuable property rights and over concepts of unfair competition generally.

7. Packaging Law is Federalism

To fully understand packaging law, you have to understand the concept of federalism, which is usually defined as the interrelationship of federal and state governments. It's easy to forget these days, but the United States was formed by the combination of a group of independent states, which decided to give a national government some of their powers. Today, the federal government may dominate in many areas, but it also works closely with states on many topics, and leaves some to state regulation altogether. The proper study of packaging law requires an appreciation of the role of the federal and state governments (local ones, too), and an understanding of the issues that arise when state laws don't match one another. This is particularly true when examining questions of whether federal law preempts (takes precedence over) state and local laws on the same topic.

8. Packaging Law is Packaging-Content-Dependent

The law applicable to any given package will depend to a large extent on what the package is holding.

9. Packaging Law is Package-Material-Dependent

The law applicable to any given package will depend to a large extent on what the package is made of.

10. Packaging Law is Political

All of the above should be tempered by an understanding that the legal requirements applicable to packaging are often the result of political forces, rather than common sense, good science, fairness to industry, and other influences.

Eric F. Greenberg November 2010