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Half-empty packets

Half-empty packets

Have you ever opened a packet and discovered it’s half full of air? Gwendoline Keel and Ciska de Rijk, food law specialists at Simpson Grierson, explain the law around ‘slack-filling’.

‘Slack-fill’ refers to the difference between the capacity of a container and the actual volume of the product inside. In short, it’s the empty space you find in food packaging. Slack-filling is a common practice in the packaged food industry but it has recently been in the spotlight after a string of global companies have been sued by consumers getting less product than they expected.

What’s the law got to say?

There are no laws in Australia and New Zealand that specifically regulate slack-filling. Under the Weights and Measures Act 1987 and its regulations, suppliers must label food products with accurate weights and measures information. This includes the requirement that the weight of a product must accurately reflect the net weight stated on the pack.

While most companies adhere to these requirements, problems may arise when there is excessive slack-fill because this has the potential to mislead consumers as to the actual quantity contained within the food packaging.

In New Zealand, misleading and deceptive conduct in trade is prohibited by the Fair Trading Act 1986 and carries hefty fines of up to $600,000 for companies found in breach.

Where is the line in the sand?

Sometimes slack-fill serves a necessary function, such as protecting the contents of a packet from being crushed. This is referred to as ‘functional slack-fill’ and is acceptable to a certain degree. The International Organization of Legal Metrology, an international organisation that promotes the harmonisation of global measurement systems, recommends that a package should not be partially filled in a way that may deceive a consumer unless the slack-fill is required in the production process. These are only recommendations, but they tie in with the requirements of our Fair Trading Act. The key issue for companies in New Zealand is ensuring that consumers are not misled about the amount of product in the package. But whether space left in the box is ‘misleading’ has to be considered on a case-by-case basis.

What’s the big deal?

Other countries have much stricter laws in place in relation to slack-fill. ‘Non-functional slack-fill’ (empty space that does not serve a purpose) is prohibited in the US and many of its states require businesses to notify consumers of changes to packaging and weight of products. Consumer class actions about slack-fill are on the rise in the US, with a number of global companies recently facing legal action.

With these global brands under scrutiny, the issue with slack-fill may soon make its way to our shores.

First published: Nov 2017

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