BILL NUMBER: AB 1394	CHAPTERED
	BILL TEXT

	CHAPTER   711
	FILED WITH SECRETARY OF STATE   OCTOBER 6, 1997
	APPROVED BY GOVERNOR   OCTOBER 5, 1997
	PASSED THE ASSEMBLY   SEPTEMBER 12, 1997
	PASSED THE SENATE   SEPTEMBER 8, 1997
	AMENDED IN SENATE   SEPTEMBER 5, 1997
	AMENDED IN SENATE   SEPTEMBER 4, 1997
	AMENDED IN SENATE   JULY 22, 1997
	AMENDED IN SENATE   JULY 10, 1997
	AMENDED IN ASSEMBLY   MAY 23, 1997

INTRODUCED BY  Assembly Members Figueroa and Escutia
   (Principal coauthor:  Assembly Members Keeley, Pringle, and
Shelley)
   (Principal coauthor:  Senator Polanco)
   (Coauthors:  Assembly Members Campbell, Cunneen, Davis, and
Morrow)
   (Coauthors:  Senators McPherson and Sher)

                        FEBRUARY 28, 1997

   An act to repeal and add Section 12606 of the Business and
Professions Code, and repeal and add Section 110375 of the Health and
Safety Code, relating to packaging and labeling.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1394, Figueroa.  Packaging and labeling.
   (1) Existing law, known as the Fair Packaging and Labeling Act,
provides for the regulation by the Department of Consumer Affairs of
labeling of all commodities for distribution or sale, as specified.
A violation of any provision thereof is a misdemeanor.  Existing law
sets forth general requirements for commodities containers, as
specified, and more rigorous requirements for food containers subject
to the Federal Food, Drug and Cosmetic Act, as specified.
   This bill would repeal those general requirements for commodities
containers and, instead, add requirements for commodities containers
that are similar to existing requirements for food containers.  Since
a violation of the provisions applicable to packaging and labeling
of commodities is a crime, this bill would impose a state-mandated
local program.
   This bill would also authorize any sealer to seize any container
in violation of those new requirements.  It would therefore impose a
state-mandated local program by imposing additional responsibilities
upon county sealers.
   (2) Existing law also provides for the regulation by the
Department of Health Services of the packaging and labeling of foods,
drugs, devices, and cosmetics, and provides that the department may
prohibit the nonfunctional slack fill of packages, as defined.
   This bill would repeal that provision, and instead, add
requirements for commodities containers that are similar to existing
requirements for food containers under the Fair Packaging and
Labeling Act.
  (3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 12606 of the Business and Professions Code is
repealed.
  SEC. 2.  Section 12606 is added to the Business and Professions
Code, to read:
   12606.  (a) No container wherein commodities are packed shall have
a false bottom, false sidewalls, false lid or covering, or be
otherwise so constructed or filled, wholly or partially, as to
facilitate the perpetration of deception or fraud.
   (b) No container shall be made, formed, or filled as to be
misleading.  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 the following:
   (1) Protection of the contents of the package.
   (2) The requirements of machines used for enclosing the contents
of the package.
   (3) Unavoidable product settling during shipping and handling.
   (4) The need to utilize a larger than required package or
container to provide adequate space for the legible presentation of
mandatory and necessary labeling information, such as those based on
the regulations adopted by the Food and Drug Administration or state
or federal agencies under federal or state law, laws or regulations
adopted by foreign governments, or under an industrywide voluntary
labeling program.
   (5) The fact that the product consists of a commodity that is
packaged in a decorative or representational container where the
container is part of the presentation of the product and has value
that is both significant in proportion to the value of the product
and independent of its function to hold the product, such as a gift
combined with a container that is intended for further use after the
product is consumed, or durable commemorative or promotional
packages.
   (6) An inability to increase the level of fill or to further
reduce the size of the package, such as where some minimum package
size is necessary to accommodate required labeling, discourage
pilfering, facilitate handling, or accommodate tamper-resistant
devices.
   (7) The product container bears a reasonable relationship to the
actual amount of product contained inside, and the dimensions of the
actual product container, the product, or the amount of product
therein is visible to the consumer at the point of sale, or where
obvious secondary use packaging is involved.
   (8) The dimensions of the product or immediate product container
are visible through the exterior packaging, or where the actual size
of the product or immediate product container is clearly and
conspicuously depicted on the exterior packaging, accompanied by a
clear and conspicuous disclosure that the representation is the
"actual size" of the product or the immediate product container.
   (9) The presence of any head space within an immediate product
container necessary to facilitate the mixing, adding, shaking, or
dispensing of liquids or powders by consumers prior to use.
   (10) The exterior packaging contains a product delivery or dosing
device if the device is visible, or a clear and conspicuous depiction
of the device appears on the exterior packaging, or it is readily
apparent from the conspicuous exterior disclosures or the nature and
name of the product that a delivery or dosing device is contained in
the package.
   (11) The exterior packaging or immediate product container is a
kit that consists of a system, or multiple components, designed to
produce a particular result that is not dependent upon the quantity
of the contents, if the purpose of the kit is clearly and
conspicuously disclosed on the exterior packaging.
   (12) The exterior packaging of the product is routinely displayed
using tester units or demonstrations to consumers in retail stores,
so that customers can see the actual, immediate container of the
product being sold, or a depiction of the actual size thereof prior
to purchase.
   (13) The exterior packaging consists of single or multi-unit
presentation boxes of holiday or gift packages if the purchaser can
adequately determine the quantity and sizes of the immediate product
container at the point of sale.
   (14) The exterior packaging is for a combination of one purchased
product, together with a free sample or gift, wherein the exterior
packaging is necessarily larger than it would otherwise be due to the
inclusion of the sample or gift, if the presence of both products
and the quantity of each product are clearly and conspicuously
disclosed on the exterior packaging.
   (15) The exterior packaging or immediate product container
encloses computer hardware or software designed to serve a particular
computer function, if the particular computer function to be
performed by the computer hardware or software is clearly and
conspicuously disclosed on the exterior packaging.
   (c) Any sealer may seize a container that facilitates the
perpetration of deception or fraud and the contents of the container.
  By order of the municipal or superior court of the city or county
within which a violation of this section occurs, the containers
seized shall be condemned and destroyed or released upon such
conditions as the court may impose to insure against their use in
violation of this chapter.  The contents of any condemned container
shall be returned to the owner thereof if the owner furnishes proper
facilities for the return.
  SEC. 3.  Section 110375 of the Health and Safety Code is repealed.

  SEC. 4.  Section 110375 is added to the Health and Safety Code, to
read:
   110375.  (a) No container wherein commodities are packed shall
have a false bottom, false sidewalls, false lid or covering, or be
otherwise so constructed or filled, wholly or partially, as to
facilitate the perpetration of deception or fraud.
   (b) No container shall be made, formed, or filled as to be
misleading.  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 the following:
   (1) Protection of the contents of the package.
   (2) The requirements of machines used for enclosing the contents
of the package.
   (3) Unavoidable product settling during shipping and handling.
   (4) The need to utilize a larger than required package or
container to provide adequate space for the legible presentation of
mandatory and necessary labeling information, such as those based on
the regulations adopted by the Food and Drug Administration or state
or federal agencies under federal or state law, laws or regulations
adopted by foreign governments, or under an industrywide voluntary
labeling program.
   (5) The fact that the product consists of a commodity that is
packaged in a decorative or representational container where the
container is part of the presentation of the product and has value
that is both significant in proportion to the value of the product
and independent of its function to hold the product, such as a gift
combined with a container that is intended for further use after the
product is consumed, or durable commemorative or promotional
packages.
   (6) An inability to increase the level of fill or to further
reduce the size of the package, such as where some minimum package
size is necessary to accommodate required labeling, discourage
pilfering, facilitate handling, or accommodate tamper-resistant
devices.
   (7) The product container bears a reasonable relationship to the
actual amount of product contained inside, and the dimensions of the
actual product container, the product, or the amount of product
therein is visible to the consumer at the point of sale, or where
obvious secondary use packaging is involved.
   (8) The dimensions of the product or immediate product container
are visible through the exterior packaging, or where the actual size
of the product or immediate product container is clearly and
conspicuously depicted on the exterior packaging, accompanied by a
clear and conspicuous disclosure that the representation is the
"actual size" of the product or the immediate product container.
   (9) The presence of any head space within an immediate product
container necessary to facilitate the mixing, adding, shaking, or
dispensing of liquids or powders by consumers prior to use.
   (10) The exterior packaging contains a product delivery or dosing
device if the device is visible, or a clear and conspicuous depiction
of the device appears on the exterior packaging, or it is readily
apparent from the conspicuous exterior disclosures or the nature and
name of the product that a delivery or dosing device is contained in
the package.
   (11) The exterior packaging or immediate product container is a
kit that consists of a system, or multiple components, designed to
produce a particular result that is not dependent upon the quantity
of the contents, if the purpose of the kit is clearly and
conspicuously disclosed on the exterior packaging.
   (12) The exterior packaging of the product is routinely displayed
using tester units or demonstrations to consumers in retail stores,
so that customers can see the actual, immediate container of the
product being sold, or a depiction of the actual size thereof prior
to purchase.
   (13) The exterior packaging consists of single or multi-unit
presentation boxes of holiday or gift packages if the purchaser can
adequately determine the quantity and sizes of the immediate product
container at the point of sale.
   (14) The exterior packaging is for a combination of one purchased
product, together with a free sample or gift, wherein the exterior
packaging is necessarily larger than it would otherwise be due to the
inclusion of the sample or gift, if the presence of both products
and the quantity of each product are clearly and conspicuously
disclosed on the exterior packaging.
   (c) Any sealer may seize a container that facilitates the
perpetration of deception or fraud and the contents of the container.
  By order of the municipal or superior court of the city or county
within which a violation of this section occurs, the containers
seized shall be condemned and destroyed or released upon such
conditions as the court may impose to insure against their use in
violation of this chapter.  The contents of any condemned container
shall be returned to the owner thereof if the owner furnishes proper
facilities for the return.
  SEC. 5.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
   However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.  If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
   Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.