BILL ANALYSIS                                                                                                                                                                                                    



                                                                            



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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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