Packaging as a Form of Advertising

Consumer product packaging is one of the most persuasive forms of marketing a business uses. It is the last communication a potential buyer sees before making a purchase decision, and it works on multiple levels simultaneously: through the visible net contents declaration, through the front-of-package imagery and claims, through the label design and visual signals, and through the physical structure of the package itself. Because packaging is advertising, it is subject to the same consumer protection standards as any other form of advertising, including the FTC’s prohibition on unfair or deceptive acts or practices.

Deception in packaging can arise in ways that are obvious — a net weight declaration that overstates the amount of product in the package — and in ways that are more subtle. Packaging that is filled with air or padding to make a container appear larger than the amount of product it contains is deceptive under the FTC Act even if the net weight declaration is technically accurate. A container whose shape creates a false impression of size — a sauce jar with a thick base that displaces product volume, giving the appearance of a larger jar than the contents justify — can be deceptive if a reasonable consumer would be misled about the amount of product they are buying. These nonfunctional slack-fill issues are a recurring source of consumer class action litigation.

The Fair Packaging and Labeling Act

The Fair Packaging and Labeling Act of 1966 requires that consumer commodity packages bear certain mandatory disclosures: the identity of the commodity, the name and place of business of the manufacturer, packer, or distributor, and the net quantity of contents. The FTC administers the FPLA for most consumer commodities, while the Food and Drug Administration administers it for food, drugs, cosmetics, and medical devices. Regulations issued under the FPLA establish specific requirements for the form, location, and content of net quantity declarations.

The net quantity declaration must appear on the principal display panel of the package — the portion of the package most likely to be seen by consumers at the point of purchase. It must be expressed in both metric units and US customary units for most products, must use the correct unit of measurement for the type of product (weight for solid products, volume for liquid products, and count for discrete items), and must be stated in a specified minimum type size based on the size of the principal display panel. The declaration must be accurate within the tolerances established by the applicable regulations.

Nonfunctional Slack-Fill

Nonfunctional slack-fill — empty space in a package that serves no functional purpose — is specifically prohibited by the FTC’s regulations and has been the basis for a large number of consumer class action lawsuits under state consumer protection laws. The FTC’s regulations identify several legitimate reasons for slack-fill that make it functional rather than deceptive: protecting the product during distribution, a requirement of the machinery used to enclose the product, a settlement of contents that occurs after packaging and during shipping, the need for adequate space for required labeling, and bulk commodities that are customarily sold by weight and packaged in containers not intended to show the full contents.

Slack-fill that cannot be justified by one of these functional reasons is nonfunctional and potentially deceptive. A bag of snack chips that is 50 percent empty is a classic nonfunctional slack-fill case, unless the seller can demonstrate that the empty space is necessary for product protection or results from mandatory settling during distribution. Courts have been skeptical of slack-fill justifications that are pretextual, and plaintiffs in slack-fill class actions have been successful in a number of cases involving snack foods, vitamins, dietary supplements, and other consumer products.

Package Size and Visual Misleadingness

Beyond slack-fill, packaging can be deceptive through visual design choices that create a false impression of the product or its quantity. The shape of a container can mislead consumers about its capacity. A narrow bottle that is tall may appear to contain more liquid than a shorter, wider bottle of identical volume. A jar with a thick glass bottom may appear to contain more product than it actually does because the bottom space looks like product. These visual effects may be deceptive if they would mislead a reasonable consumer about the quantity of product they are buying, even if the net quantity declaration is accurate.

The FTC’s test for deceptive packaging is the same test applied to deceptive advertising generally: whether the net impression of the package would mislead a significant portion of reasonable consumers. An accurate net quantity declaration does not immunize a package design from a deception claim if other elements of the package create a misleading net impression. The net quantity declaration is a required disclosure, but it is not a safe harbor that permits any package design as long as the correct weight is printed on the label.

State Enforcement and Private Class Actions

Deceptive packaging claims are among the most common theories in consumer product class action litigation. State consumer protection statutes in California, New York, Illinois, Florida, and other major states provide private rights of action for consumers who purchase products based on deceptive packaging or labeling. The class action mechanism makes these claims economically viable for plaintiffs’ attorneys, who can aggregate small individual damages — the price premium a consumer paid because of the misleading packaging — into class-wide damages that can reach tens or hundreds of millions of dollars in large consumer product cases.

California’s consumer protection statutes have been particularly active vehicles for slack-fill class actions, with plaintiffs filing claims under the Unfair Competition Law, the False Advertising Law, and the Consumer Legal Remedies Act. Courts in California and other states have been receptive to slack-fill claims where plaintiffs can demonstrate that the amount of empty space in a package would mislead a reasonable consumer about the quantity of product, even when the correct net weight is accurately disclosed. The combination of state AG enforcement and private class action exposure makes packaging compliance a significant business risk for consumer product companies.

Compliance Strategies for Consumer Product Companies

Effective packaging compliance requires integrating legal review into the packaging design and development process, not just at the end when the package is already designed. When a new package is being developed, counsel should review the net quantity declaration for accuracy and compliance with FPLA requirements, evaluate whether any empty space in the container is functional and documentable, review the visual design for any elements that create a misleading impression of quantity, and review all label claims for compliance with applicable advertising standards.

For existing products, periodic packaging audits can identify compliance issues before they result in regulatory action or class litigation. A packaging audit should examine whether the net quantity declaration meets current FPLA requirements, whether the amount of slack-fill is defensible under the functional slack-fill categories, and whether the overall visual design of the package creates any impression of size or quantity that is inconsistent with the actual contents. Companies that identify and correct packaging compliance issues proactively are in a much stronger position than those who make corrections only in response to an FTC investigation or a class action complaint.

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