The FDA defines nonfunctional slack fill as the difference between the capacity of a container and the volume of product inside. In South Africa, under SANS 289, it is defined slightly differently as “ Slack fill is the difference between the actual capacity of the packaging material and the volume of product it contains. Nonfunctional slack fill is the empty space in a prepackage that is filled to less than its capacity.”
In South Africa, slack fill is considered a misleading practice under SANS 289 and contravention thereof is subject to prosecution by the NRCS and besides the imposition of a fine, stock can be quarantined and eventually forfeit if the slack fill cannot be rectified which in most cases it can not.
One should also not lose sight that besides the regulatory prohibition on slack fill and the criminal provisions thereof discussed above, there is also the prohibition in the Consumer Protection Act against misleading and deceptive consumer practices. Specifically Sections 29 and 41 of the Consumer Protection Act, while not specifically using the term slack fill, make slack fill a prohibited conduct and subject to the sanctions under the Consumer Protection Act of a fine of R 1 million or 10% of turnover, and in addition allow for class action lawsuits by consumers who believe they have been deceived by the practice, as has become common in the USA.
“Section 29 of the Consumer Protection Act states that a producer, importer, distributor, retailer or service provider must not market any goods or services—
(a) in a manner that is reasonably likely to imply a false or misleading representation concerning those goods or services, as contemplated in section 41; or
(b) in a manner that is misleading, fraudulent or deceptive in any way, including in respect of—
(i) the nature, properties, advantages or uses of the goods or services;
(ii) the manner in or conditions on which those goods or services may be supplied;
……………..
(v) any other material aspect of the goods or services.
Section 41 in turn provides that In relation to the marketing of any goods or services, the supplier must not, by words or conduct—
(a) directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a consumer;
(b) use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception; or
(c) fail to correct an apparent misapprehension on the part of a consumer, amounting to a false, misleading or deceptive representation, or permit or require any other person to do so on behalf of the supplier.
(3) …………it is a false, misleading or deceptive representation to falsely state or imply, or fail to correct an apparent misapprehension on the part of a consumer to the effect, that—
…………
(b) any goods or services—
(i) have ingredients, performance characteristics, accessories, uses, benefits, qualities, sponsorship or approval that they do not have;
(ii) are of a particular standard, quality, grade, style or model;”
When is Slack Fill allowed?
SANS 289 provides specific exemptions to the prohibition on slack fill:
At 6.2 and 6.3 it states:
“ Packages shall be filled in such a manner that a purchaser might not reasonably be misled with respect to the quantity or identity of the product it contains, taking into consideration any recognized and accepted production practices that might be necessary for the manufacturer or packer. If a consumer cannot fully view the product in a prepackage, it shall be considered to be filled, and shall be misleading if it contains non-functional slack fill. Slack fill is the difference between the actual capacity of the packaging material and the volume of product it contains. Nonfunctional slack fill is the empty space in a prepackage that is filled to less than its capacity. Slack fill might be necessary for the following reasons:
a) protection of the product;
b) the requirements of machines used for enclosing the contents of the prepackage;
c) unavoidable product settling during shipping and handling; and
d) the need for the prepackage to perform a specific function (e.g. where packaging plays a role in the preparation or consumption of food), where such function is inherent to the nature of the product and is clearly communicated to consumers.
6.3 Prepackages shall not have a false bottom, sidewalls, lid or covering, or be otherwise so constructed or filled, wholly or partially that might deceive the consumer.”
Before one considers what these reasons for permissible slack fill means perhapsd it is best to discuss what they do not allow. Specifically, the rationale that a packer already has a packaging machine which was manufactured for a higher mass or volume quantity than is currently being packed and thus the box or container size cannot be reduced when the quantity being pack was downsized is not an acceptable reason for slack fill in terms of (b) above i.e. it is not considered “ the requirements of machines used for enclosing the contents of the prepackage”.
There is no reported case law on these four exemptions to nonfunctional slack fill in South Africa but one can look at case law and interpretation of similar provisions in other countries, for example, the USA.
USA Position on Nonfunctional Slack Fill
In addition to the four exemptions in SANS 289 discussed above, in the USA there are provided two further exemptions which do not apply in South Africa and which can trip up importers of foodstuffs from the USA to South Africa. These two additional exemptions are:
“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, e.g., a gift product consisting of a food or foods combined with a container that is intended for further use after the food is consumed; or durable commemorative or promotional packages; or
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).”
The FDA considers slack-fill in excess of the amount necessary to accomplish a particular function is nonfunctional (i.e., misleading) slack-fill. The applicability of each exemption turns on whether the empty space in a container serves the specific function, and whether the amount of slack-fill present is necessary to achieve that function. FDA suggests that companies know the physical characteristics of their products and the capabilities of their packaging equipment to ensure that any slack-fill in their packages performs one or more valid functions and is, therefore, not misleading.
Exemptions
Cosidering now each of the first four FDA exemptions, which are very similar to the SANS 289 exemptions in South Africa.
1. Protection of the contents of the package
To determine whether the empty space is necessary a company should understand how the physical characteristics of the product and packaging materials, and the shipping and holding procedures and conditions may affect the product e.g. headspace in a container filled with nitrogen to protect the product from oxidation, the empty space required to prevent breakage during shipping and handling, and space needed to insert a cotton space filler in a bottle of tablets.
2. Requirements of the machines used for enclosing the contents in such package
The slack-fill necessary for the efficient functioning of equipment used to enclose a product in its immediate container is functional slack-fill provided that the company makes “appropriate use of available packaging materials and filling equipment” and “all equipment involved when product and package come together,” including, as one example, the equipment used to fill package headspace with nitrogen which will be functional slack-fill.
Of additional relevance is that the FDA slack-fill rule does not require companies “to purchase additional or more sophisticated packaging equipment,” and FDA recognizes that this exemption covers “the use of a single filling machine to package related products when such use is appropriate.”
3. Unavoidable product settling during shipping and handling
To the extent the physical characteristics of a product (e.g., particle size and shape, product density, and product fragility) and the limitations of the filling equipment contribute to unavoidable product settling during shipping and handling, such slack-fill is functional and, therefore, not misleading. Product settling is unavoidable when despite appropriate use of packaging materials and equipment, the characteristics of the product or the capabilities of packaging equipment still result in product settling during shipping and handling.
This exemption would obviously not apply to a company’s adjusting line speed and use of filling equipment to intentionally ensure that a product is more loosely packed than necessary in order to “temporarily achieve what appears to be a full container,” and such a procedure would not constitute functional slack-fill under section
4. The need for packaging to perform a specific function inherent to the nature of the food
Slack-fill that results from the need for the package to perform a specific function is not misleading if the specific function is inherent to the nature of the product and the function is obvious or clearly communicated to consumers. Specific package functions inherent to the nature of the food include packaging that can be used to prepare or consume the food e.g. adding hot water to a cup of powder or noodles.
Requirement of Intent
In the USA, whether or not slack-fill is misleading does not require proving intent to mislead the consumer. Therefore, slack-fill may still be misleading, regardless of a company’s intent, if a reasonable consumer would be misled as to the amount of product in the container. Key here is the term “reasonable consumer” and, in South Africa, this would have a different meaning from that in the USA and may also differ by product category and likely consumer sophistication and literacy amongst other factors.
Quantity Marking under SANS 289 and Misleading the Reasonable Consumer with Nonfunctional Slack Fill
Having provided an exposition and discussion of the requirements and the exemptions we now come to the underlying question which is front and centre to all enquiries into slack fill and which are at the core of class action lawsuits by consumers in the USA claiming deception by nonfunctional slack fill.
Turning again to the USA for guidance, the FDA has asserted that label statements may not be used to inform consumers about and, therefore, remedy the presence of nonfunctional slack-fill. FDA noted specifically that net weight statements do not provide protection against misleading fill. This logic probably holds true in South Africa under SANS 289 and the Consumer Protection Act too.
Prosecution and Actions by Consumers
But South Africa is not the USA, I hear you say. True.
In the USA the FDA has prosecuted companies for nonfunctional slack fill but the big stick are the class action lawsuits brought by and on behalf of consumers whi feel cheated by the nonfunctional slack filled large cereal box with some cereal in the bottom, or a box of candy in a cinema which is purchased in a dark environment where a consumer cannot read the weight indication and relies on the box size as an indication of quantity.
In the USA, recent cases show that it is not always a good argument to say that the consumer could have acted reasonably by reading the label or shaking the box to realise there is a lot of empty space.
On February 16, 2018, a Missouri federal district court denied Nestlé’s motion to dismiss in Hawkins v. Nestlé USA, Inc., No. 4:17CV205 -HEA, 2018 WL 926130 (W.D. Mo. Feb. 16, 2018) challenging allegations that boxes of Raisinets candy contain 45% nonfunctional slack fill. In its motion to dismiss, Nestlé argued that a reasonable consumer would instantly realize the package was half-empty because of its “maraca-like rattle.”
A California federal district court reached a similar result last summer in Escobar v. Just Born Inc., No. CV 17-01826 BRO (PJWx), 2017 WL 5125740 (C.D. Cal. Jun. 12, 2017). The court denied a motion to dismiss and rejected the defendant’s argument that by shaking the package and reading the label, the plaintiff could have determined that the package was half full.
The Court’s ruling is of importance here as similar principles should apply in South Africa under our Consumer Protection Act:
“ [T]he Court cannot find as a matter of law that a reasonable consumer of Mike & Ike® or Hot Tamales® understands that the weight displayed on the Products’ packaging will measure a significantly smaller amount of Products held within a larger outer packaging. Furthermore, the fact that a consumer may be able to hear ‘the familiar rustling sound created by the empty space and feel the candy pieces moving from side to side within the box’ does not mean that the packaging did not deceive the consumer into purchasing the item. Common sense dictates not only that candy may make audible noise upon shaking the Products’ box, but also that consumers do not necessarily have a reasonable opportunity prior to purchase to shake or otherwise manipulate a box of candy on the shelf or behind glass to ascertain whether the box is filled to the brim with Product. Thus, consumers may reasonably rely on the size of the packaging and believe that it accurately reflects the amount she is purchasing.”
Conclusion
The NRCS has in 2019 already taken action against several companies for nonfunctional slack fill but, as yet, there have been no class action lawsuits launched under the Consumer Protection Act on the basis that consumers were deceived and short changed when buying big packs with an unexpectedly small amount of product therein, and the reason for the slack fill cannot fit squarely into one of the four grounds for exemption from the slack fill prohibition in SANS 289.
In following the interpretation of similar exemptions in the USA it would be wise for companies to understand their product and their packaging and not rely on package labels and weight indications as a defence to slack fill allegations as these are likely to fail in all but a few cases where the products are for a very small and limited consumer base.
Remember, there is no need to prove intend to mislead or deceive the consumer to be in contravention of SANS 289 or to be open a class action lawsuit under the Consumer Protection Act.
About the Author
Janusz F. Luterek, Pr.Eng for Hahn & Hahn Attorneys
For advice on compliance and other legal issues in the food industry contact Janusz Luterek at janusz@hahnlaw.co.za - your food lawyer.
www.hahnlaw.co.za
