The plain meaning of the language requiring that goods be “adequately contained” and “packaged” would seem to indicate that when packaging itself causes harmful effects when the product is used in the way it is envisioned (i.e. eaten), it can not possibly be “adequate” for the “ordinary purposes” for which it is used under the U.C.C. Some pioneering plaintiffs’ lawyers have made this argument in the context of BPA used in drinking bottles, but they have been unsuccessful. The problem, particularly in the context of drinking containers, is that a plaintiff must show that the bottle is unfit for its “ordinary purpose.” However, the ordinary purpose of a bottle is arguably to hold liquid for drinking, which is not in and of itself inhibited by the presence of BPA. Courts have thus far been unwilling to stretch their understanding of a bottle’s “purpose” to include “providing BPA-free” containers.
In the context of packaged food, however, the packaging itself inhibits the good’s “ordinary purpose,” which is to provide some form of transportable nutrition. The chemicals in the packaging thwart this purpose by infecting the food with harmful toxins. Therefore, when the purpose of a good is to provide a healthful product, rather than just a convenient one, U.C.C. § 2-314 might be a useful tool for consumer advocates.
As the science connecting FCMs with health problems becomes more robust, courts may be more willing to find that a drink or vessel’s “ordinary purpose” includes providing it in a healthy way. Until then, though, the implied warranty of merchantability under U.C.C § 2-314 may be a powerful tool for preventing the use of potentially harmful packaging in food products. The U.C.C’s requirement that goods be “adequately packaged” and fit for their “ordinary purposes” empowers buyers to refuse goods that are packaged in containers made with harmful chemicals. Most promisingly, it serves as a way for both buyers and consumer advocates to hold sellers accountable for the way they package their goods, paving the way for more widespread use of non-toxic, and ideally sustainable, product packaging.
Tags: BPA, food contact materials, food packaging, formaldehyde, merchantability
