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Food Labeling: Toward National Uniformity
California prohibits nonfunctional slack fill of containers unless it is (a) necessary to protect the contents of the package or (b) required by the machines used to pack the contents in such packages (Cal. Health & Safety Code §26437). A second California requirement for deceptive packaging which prohibits all nonfunctional slack fill packaging is discussed below (Cal. Bus. & Prof. Code §12606).
Connecticut requirements prohibit deceptive packaging or filling of the container by requiring that no commodity in package form shall be wrapped or in a container that is formed or filled to mislead the purchaser as to the quantity or the quality of the contents of the package (Conn. Gen. Stat. §42-115m). Furthermore, the contents of a container shall not fall below such reasonable standard of fill as may have been prescribed for the commodity in question by the Commissioner of Consumer Affairs.
Minnesota has established tolerances and variations from the quantity of contents marked on packages. The only allowable discrepancies are those owing to (1) unavoidable errors when weighing the product in compliance with good commercial practices, (2) differences in capacities of bottles and similar containers resulting from unavoidable manufacturing difficulties, or (3) atmospheric conditions (Minn. R. §1550.0480).
New Jersey has introduced a State bill which requires that consumers must receive clear and conspicuous label notice for at least six months in instances in which the net weight, measure, or quantity of food in a package has been reduced without a substantial change in packaging (N.J. Bill 4880, pending).
Washington requires that any slack filled container shall be conspicuously marked "slack filled" (Wash. Rev. Code §69.28.100).
The activities in California to regulate misleading packaging deserve further discussion because the State has chosen to implement FPLA requirements that go beyond FDA requirements. The California Attorney General interpreted the State's slack fill provision as not requiring proof that the slack fill is misleading or deceptive and prohibiting any unoccupied space in cases in which the immediate container is enclosed within an outer retail package (eg., a bottle in a cardboard carton). In Hobby Industry Association of America, Inc. v. Younger , 101 Cal. App. 3d 358,161 Cal. Rptr. 601 (1980), the court upheld the position of the California Attorney General.