Slack fill complaint leads to empty feeling

June, 2010

Eric F. Greenberg, Attorney-at-Law

Consumer group the Center for Science in the Public Interest has asked the Food and Drug Adminstration and many U.S. states to suppress a problem the group’s head calls “commonplace.” It says “slack fill” in food packaging is cheating consumers.
As explained below, empty space in a package, or slack fill, is not a problem for regulators unless it is nonfunctional, and, as most packaging professionals know, there certainly are a lot of important functions that slack fill might serve.
It’s not really clear that this problem is big or getting bigger, and moreover, this is an odd time to complain about packaging being excessive.

When sustainability is spreading through the packaging marketplace and leading to reductions and other changes in packaging, and after more than two decades of movement toward source reduction among other environment-inspired packaging adjustments, CSPI says there’s a scourge of misleadingly formed food packaging.

Packaging often contains empty space inside it, called “slack fill,” but it usually serves one or more necessary purposes. FDA doesn’t prohibit “slack fill,” but it does prohibit “nonfunctional slack fill” in containers that aren’t see-through. “A container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack fill,” says the regulation 21 CFR Sec. 100.100. The regulation, in addition to excluding containers that “allow the consumer to fully view” their contents, also makes clear there’s nothing wrong with slack fill that is functional, offering the following definitions of proper functions. [Emphasis added, slightly edited.]

(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. . . . ; 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 nonmandatory designs or label information), discourage pilfering, facilitate handling, or accommodate tamper-resistant devices).

Packaging professionals will find this list a familiar review of the realities of the packaging function, a complex balance of a variety of necessities for safety, communication, protection, food technology, the realities of transport, and other considerations. One read-through of this regulatory list of permissible reasons for slack fill and the world suddenly seems more complicated than saying ‘Hey, I thought there would be more cookies in this bag.’

CSPI offers several examples of packages they consider to contain non-functional slack fill-including a dessert mix with a pouch inside an outer box; a dinner mix with several pouches inside a box; and a box containing a bag of cookies-but they don’t present a complete analysis sufficient to conclude that the empty space is nonfunctional, and they certainly don’t seem to have uncovered a widespread scourge in need of FDA or state action. (They do admit that food safety and other issues probably should come first for the regulators.)

A key representative of food makers, the Grocery Manufacturers Association, thinks CSPI misses the mark by ignoring the complexities behind packaging engineering. GMA senior vice president Stephen Sibert says that food packaging development is a collaborative effort that must accommodate a broad range of limits and needs. Demands of the distribution chain, the marketers, and the retailer, among others, are factors in food package design.

GMA members are expected to follow the regulatory requirements, says Sibert, and he doesn’t perceive any recent trend toward an increase in nonfunctional slack fill.

Moreover, he says, a food company’s “consumer relationship is the foundation of our business,” and no company would be expected to jeopardize it by creating a misleading or excessively empty package. On the contrary, he notes, during recent months some food companies have responded to consumers’ economic struggles by adding content to some packages.

So it will be interesting to see where this CSPI complaint leads. Will it represent the start of a new crusade, or whether it will leave observers-pardon me-feeling empty. 

Eric can be reached at [email protected] or
and visit his firm’s Web site at www.ericfgreenbergpc.com.