Packaging and labeling tell a product’s story. Creative packaging can be a work of art or sometimes (consider those resealable Ziplock packages) an important product feature. Descriptive labeling can differentiate a product from the others around it by, for example, describing its source or recounting how it was made in an environmentally sustainable fashion. Packaging and labeling together can be an effective marketing and sales tool. That is why companies can spend millions of dollars designing the proper packaging and labeling for their product.

But while packaging and labeling can help sell a product, there are regulatory and legal standards that must be met to ensure packaging safety and integrity, and regulatory guidance to ensure that consumers are adequately warned of product dangers and risks.

Primary packaging, which is sometimes called the “consumer unit” and is in direct contact with the product, must be safe and non-reactive for the product’s contents and functionally prevent contamination and damage. In the case of food products, the proper packaging extends the shelf life of food.

Secondary packaging, which groups certain products into stockkeeping units, generally referred to in the retail industry as “SKUs,” facilitates the handling of smaller products by consolidating them into a single larger pack. Secondary packaging will dictate how easily and safely the product is transported, stored, and placed in warehouses and on store shelves.

Tertiary packaging arranges SKUs into even larger groups and is typically not seen by consumers. Such large units are used for transportation and warehousing and may include wood pallets and shrink wrap.

The primary packaging materials include:

• Paper, paperboard, and fiberboard, which are used to make labels, paper bags, butcher paper, milk and juice cartons, and corrugated boxes.
• Plastics, which can be strong, durable, lightweight, disposable, inexpensive, and/or hygienic.
• Glass, which is primarily used to package food and beverages.
• Steel, which is commonly used for shipping large quantities of industrial materials such as chemicals and fuel.
• Aluminum, which is used for aluminum cans, foil, and aerosol products.
• Wood packaging material in the form of pallets, bins, and other containers.

Labeling is often an integral part of packaging, particularly consumer unit packaging. Collectively, federal and state laws require manufacturers to place informative labels and warnings on various types of products based upon product category, materials or substance, and applicable safety standards. The purpose of these laws is to warn consumers about inherent product dangers, prevent consumer deception and facilitate value comparisons among products.

There are many laws around packaging, though the major governing legislation for consumer product labeling is the Fair Packaging and Labeling Act. It instructs the Federal Trade Commission and the Food and Drug Administration to issue regulations regarding disclosures that must be made on consumer commodities. In addition, the Consumer Product Safety Commission, and the U.S. Department of Commerce, through its Weights and Measures Division, promote uniformity in the labeling of consumer commodities. Several laws such as The Federal Hazardous Substances Act and the Toxic Substances Control Act cover labeling of dangerous or hazardous products.

Litigation support by a packaging expert witness may involve matters such as patent infringement, including design, utility and trade dress issues. Design patents protect ornamental features that determine how a packaged product looks, such as its proportions and surface ornamentation. Utility patents protect function and how the packaging works. Trade dress describes the overall appearance and design, including size, shape, color, and graphics, of the packaging.

Our packaging and labeling experts apply diverse skill sets to navigate complex, high stakes litigation to protect your intellectual property or represent your client in civil litigation and class actions. We’ve placed packaging expert witnesses to testify in numerous cases, including a patent infringement expert in a semiconductor wafer packaging case, a materials science expert to testify on the physical properties of stretch wrap used on trucks, a packaging expert for dunnage practice standards in late 1990’s, and a packaging expert to opine on the slack-fill in personal products. On the labeling side we have placed experts to opine on EPA/FIFRA labeling requirements, and a multitude of experts to testify on deceptive labeling claims in cases related to pharmaceuticals, nutritional supplements, food and beverage items, pet foods, home cleaning products and pesticides.