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State Requirements

Several State Attorneys General (1991) have suggested that States often take the lead in responding to the public's needs locally in advance of any Federal response. They cited the example of regulation of misleading package containers as an instance in which they believed States were providing such leadership. Some States have enacted laws or promulgated regulations that indicate a different resolution of container fill and deceptive packaging policy issues from that of FDA.

Representatives from the Florida Department of Agriculture and Consumer Services (FDACS) cited several examples of commercially available food products that in their opinion are deceptively packaged (Woodward, 1991). In one case, a manufacturer made two varieties of single serving packets of powdered hot beverage mix. The variety that was called "light" contained 40 percent less product by weight, but the size of the envelopes and external package for both varieties were the same. FDACS considers Federal action on deceptive packaging inadequate, especially for products in opaque containers. Likewise, Michigan expressed a need for greater clarity of FDA policies relative to container fill and deceptive packaging.

Some State and local jurisdictions have also addressed the matter of "downsizing" of products or "package shorting," the practice of reducing the amount of product in a package while maintaining the same size container. Downsizing is considered an issue of deceptive packaging rather than slack fill. Examples of foods that have been alleged to be downsized by manufacturers include canned tuna fish, coffee, tea, cereals, spaghetti sauce, and soup mixes. New York recently introduced legislation that would require notice of the package change to appear clearly and conspicuously on the principal display panel for at least 6 months from the date the downsizing occurs (AFDO, 1991; Lindan, 1991). In contrast, no Federal regulations deal with the practice of downsizing.

The following list outlines State labeling requirements "of the W represented by FDCA Section 403(d):

Alabama has enacted specific rules for "fill" of food packages (Ala. Ag. Rule no. 80-1-22-.10).

Alaska requires that "a fisheries product is misbranded if ... its container is made, formed, or filled in a manner that is misleading ..." (Alaska Stat. §18-34.160).

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