BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 465|
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THIRD READING
Bill No: SB 465
Author: Correa (D)
Amended: 4/23/13
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEV. COMM. : 9-0, 5/6/13
AYES: Price, Emmerson, Block, Corbett, Galgiani, Hernandez,
Hill, Padilla, Wyland
NO VOTE RECORDED: Yee
SUBJECT : Packaging and labeling: containers: slack fill
SOURCE : Grocery Manufacturers Association
Personal Care Products Council
DIGEST : This bill specifies that the presence of
non-functional slack fill in a package is required for a
violation of any of the container-related provisions of the Fair
Packaging and Labeling Act or the Sherman Food, Drug, and
Cosmetic Law; specifies that non-functional slack fill is the
empty space in a package that is filled to substantially less
than its capacity for other than any one or more of specified
reasons; specifies that where required, the actual size of the
product may be depicted on "any side" of the exterior packaging;
and declares that the changes made by this bill are declaratory
of existing law.
ANALYSIS :
Existing law:
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1.Establishes the Fair Packaging and Labeling Act (Act) and
provides for enforcement of the Act by the Department of Food
and Agriculture; and declares that the Act is designed to
protect purchasers of any commodity within its provisions
against deception or misrepresentation, and that packages and
their labels should enable consumers to obtain accurate
information as to the quantity of the contents and should
facilitate value comparisons.
2.Prohibits commodities (i.e., non-food commodities) from being
packaged for distribution that is not in conformity with
prescribed packaging and labeling requirements, except as
provided.
3.Establishes certain requirements for containers used for
distribution or sale of commodities including:
A. Prohibiting a container in which commodities are packed
to have a false bottom, false sidewalls, false lid or
covering, or to be constructed or filled as to facilitate
the perpetration of deception or fraud.
B. Prohibiting a container from being made, formed, or
filled as to be misleading; and providing that a container
that does not allow a consumer to fully view its contents
violates this provision if it contains non-functional slack
fill.
C. Providing that "slack fill" is the difference between
the actual capacity of a container and the volume of
product contained therein.
D. Providing that "non-functional slack fill" is the empty
space in a package that is filled to less than its capacity
for reasons other than those specified.
1.Prohibits food containers subject to the Federal Food, Drug,
and Cosmetic Act, from being made, formed, or filled as to be
misleading, as specified.
2.Establishes, the Sherman Food, Drug, and Cosmetic Law, and
provides for regulation under that law by the Department of
Public Health of the packaging and labeling of foods, drugs,
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devices, and cosmetics.
3.Authorizes any sealer to seize a container in violation of
these provisions of law, and provides that by order of the
Superior Court the containers seized shall be condemned and
destroyed or released upon conditions imposed by the court
against their use in violation of the Act.
This bill:
1.Amends the packaging requirements pertaining to non-food
commodities and food containers in the Act, and in the Sherman
Food, Drug and Cosmetic Law:
A. Specifies that the presence of non-functional slack fill
in a package is required for a violation of any of the
container-related provisions.
B. Specifies that non-functional slack fill is the empty
space in a package that is filled to substantially less
than its capacity for other than any one or more of the
specified reasons.
C. Specifies that where the actual size of the product is
clearly and conspicuously depicted on the exterior
packaging, as specified, it may be depicted on "any side"
of the exterior packaging.
1.Declares that the changes made by this bill do not constitute
a change in, but are declaratory of existing law.
Background
Both federal and California laws have addressed the issue of
misleading packaging for consumer products, and specifically,
"slack fill" - which is the impermissible empty space between
the actual container capacity and the volume of the product
contained therein.
The federal Food, Drug and Cosmetic Act in 1938 (21 U.S.C. 301
et seq.) explicitly prohibited misleading packaging for Food and
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Drug Administration (FDA) regulated products. In 1966, the Fair
Packaging and Labeling Act was enacted and referred to the
concept of nonfunctional slack fill. The law also had a
provision authorizing the FDA to adopt regulations to "prevent
the nonfunctional slack fill of packages" containing food,
drugs, devices, or cosmetics.
In 1994, the FDA promulgated regulations establishing general
principles on non-functional slack fill:
(a) 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. Slack
fill is the difference between the actual capacity of a
container and the volume of product contained therein.
Nonfunctional slack fill is the empty space in a package
that is filled to less than its capacity for reasons other
than specified.
According to the regulation, if a container does allow a
consumer to view the full contents of the package (such as with
a transparent side-wall) it is not misleading. However, if a
container does not allow a consumer to view the contents and it
contains non-functional slack fill, it is deemed misleading,
unless it meets a specified exemption. The regulation goes on
to list six exemptions, or safe harbors, to the above
prohibition against misleading packaging; including, for
example, exempting use of non-functional slack fill when
necessary to protect the contents of the package, the
requirements of machines used for packaging, or the settling of
the product during shipping or handling.
California law . Similar to federal law, California's Fair
Packaging and Labeling Act governs misleading packaging of
consumer products. Specifically, state law prohibits a
container from containing a false bottom or side or lid, or to
be filled in such a way as to promote deception or fraud.
In 1997, AB 1394 (Figueroa, Chapter 711) was enacted to further
prohibit a container from being made or filled as to be
misleading, and provide that a container that does not allow the
contents to be viewed shall be considered misleading if it
contains non-functional slack fill. The law specifies that
slack fill is the empty space in a package that is filled to
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less than its capacity and describes 15 exceptions to the
non-functional slack fill provisions.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 5/8/13)
Grocery Manufacturers Association (co-source)
Personal Care Products Council (co-source)
Advanced Medical Technology Association
American Cleaning Institute
BAYBIO
BIOCOM
California Chamber of Commerce
California Farm Bureau Federation
California Healthcare Institute
California Manufacturers and Technology Association
California Retailers Association
Consumer Healthcare Products Association
Consumer Specialty Products Association
Pharmaceutical Researchers and Manufacturers of America
OPPOSITION : (Verified 5/8/13)
California District Attorneys Association
ARGUMENTS IN SUPPORT : According to the bill's sponsors, the
Grocery Manufacturers Association and the Personal Care Products
Council, for years, all parties abided by the slack fill
enforcement guidelines, now, 16 years after the codification of
the slack fill exemptions, companies suddenly face renewed (and
inconsistent) enforcement actions in California for their
product packaging, even though such packaging meets one of the
15 enumerated statutory exemptions. The sponsors state that the
reason for the current enforcement efforts is, ostensibly, that
packaging with non-functional slack fill is misleading, even if
it meets an exemption, and thus violates the statute. In other
words, the sponsors argue, many have resurrected an older
rationale that packaging with nonfunctional slack fill is per se
illegal, whether the packaging meets one of the enumerated
exemptions or not.
The sponsors believe that this is a clear misinterpretation (or
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perhaps reinterpretation) of the plain language of the statute,
and completely ignores the purpose of the exemptions placed into
law by the Legislature in 1997. The sponsors indicate that
slack fill violations can result in harsh monetary penalties and
can force manufacturers to spend millions of dollars modifying
packaging for products sold in California and around the world.
According to the sponsors, this bill fixes this inequitable
situation by clarifying the application of the slack fill
exemptions already codified in law.
ARGUMENTS IN OPPOSITION : The California District Attorneys
Association argues that this bill will seriously weaken existing
law that prohibits the use of unnecessarily large containers to
mislead consumers into believing that they are receiving more
product than is actually the case.
MW:ej 5/8/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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