In recent years, there has been a parade of lawsuits against various brand owners about the amount of slack-fill in their packaging. The majority of the defendants have been from the food industry, although other categories are not exempt. The federal regulatory framework associated with slack-fill packaging is as follows: the Food, Drug, and Cosmetic Act (FDCA) grants regulatory powers to the Food & Drug Administration (FDA); FDA regulations are published in the Code of Federal Regulations Title 21 (21CFR); and, 21CFR §100.100 defines slack-fill as, "the difference between the actual capacity of the container and the volume of product contained therein." According to the FDCA, a food is misbranded if its container is "made, formed, or filled" misleadingly. Code of Federal Regulations 21CFR §100.100 builds on the "filled" requirement, namely, "A container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill."
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