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Package It Right: The Legal Considerations

Article excerpt

As is true with many other aspects of business planning, legal considerations are an important element of packaging strategies and decisions. Whereas "the law" typically is viewed by management as a constraining, negative factor, key packaging decisions--impacting both compliance obligations and potential liabilities--are, as yet, largely removed from the judicial and enforcement areas. In fact, product managers often may realize competitive advantages from knowing the law and influencing its continued development.

THE LEGAL FRAMEWORK

From a health and environmental standpoint, the wide variety of both existing and proposed packaging requirements are intended to accomplish three related, but distinct, purposes.

First, many regulations are intended to protect users and other handlers against potential risks from the products themselves. Rules governing pesticides, certain consumer products and various types of chemical wastes include provisions specifying the packaging to be used or not used. In the past, most such requirements were based on performance standards. More recently, however, governmental regulations have spelled out packaging specifications and materials.

Second, certain rules are intended to protect users and other package handlers from possible exposure to harmful chemicals that might be contained in the packaging materials themselves and that might migrate (or otherwise be released) from the packages with resulting human exposure. Typical are those regulations that apply to food packages, as well as restrictions on the use of specific materials (e.g., lead) in both industrial and consumer packaging materials.

Third, against this backdrop of protecting "direct" product users/handlers, numerous legislative and rule-making activities are focusing upon a new regime of packaging requirements that are intended to protect public health and the environment from possible risks and pollution, following the disposal of packaging materials. These include a panoply of requirements that, when viewed as a whole, have very significant and long-term implications for many products and business practices.

At the forefront of these are waste minimization and recycling and recovery programs--all intended to reduce the sheer volume and diversity of materials that reach the disposal end of the line. In effect, the success of these efforts will be measured by the extent to which the traditional "life cycle" of products (i.e., R&D first, then test marketing, commercialization and disposal) is replaced by a "life re-cycle" in which the disposal stage is severely reduced.

When disposal nonetheless takes place, the wave--or torrent--of new restrictions seeks to accomplish one or more of the following: reductions in packaging volume, the use of biodegradable and other environmentally friendly packaging materials, and the elimination of specific chemicals, such as heavy metals. Foremost among these new restrictions are those that might be enacted according to "framework" solid and hazardous waste laws, such as the federal Resource Conservation and Recovery Act (RCRA) and the proposed model legislation developed by the Source Reduction Council of the Coalition of Northeastern Governors (CONEG) for adoption by state and local governments.

On this last point, a major concern both to packaging manufacturers and their suppliers is the forseeable proliferation of similar but inconsistent state and local requirements. When applied to regional or national products, such requirements will result in significant economic impacts precisely because of their differing treatment of the same or similar products.

From a business perspective, the goal may well be to support uniform requirments on a national level, even when there is a measure of opposition to the requirements in the first place. From a legal standpoint, the chief rationale to support efforts for national requirements likely will be the impacts on interstate commerce that otherwise will flow from a hodgepodge of state requirements. …