BILL ANALYSIS
SENATE COMMITTEE ON BILL NO: AB
1394
BUSINESS AND PROFESSIONS AUTHOR:
Figueroa and Senator Richard G. Polanco, Chairman Escutia
As Amended: 9/4/97
HEARING DATE: September 5, 1997 FISCAL: Yes
SUBJECT: Packaging and Labeling: expansion of exemptions to
slack fill laws.
DIGEST:
Existing law, the Fair Packaging and Labeling Act of the
Business and Professions Code (BPC), makes requirements to
protect purchasers of commodities against deception or
misrepresentation, and states that packages and their labels
should enable consumers to obtain accurate information as to the
quantity of the contents, and facilitate value comparisons.
Existing law prohibits commodities (i.e., non-food commodities)
from being packed in containers that are constructed or filled
to promote any deception or fraud. The law prohibits containers
from being "nonfunctionally slack filled" - which is described
as "filled to substantially less than its capacity for reasons
other than (a) protection of the contents of the package or (b)
the requirements of machines used for enclosing the contents in
the package."
Existing law, prohibits food containers from being made or
filled as to be misleading, and for those purposes, describes
what constitutes "slack fill" and "nonfunctional slack fill."
Existing law, the Health and Safety Code (HSC), authorizes the
Department of Health Services (DHS) to prohibit the
nonfunctional slack fill of packages containing any food, drug,
device or cosmetic.
This bill would repeal the "slack fill" requirements for
containers of non-food commodities, and revise and recast them
to be similar to the requirements for food containers.
Specifically, this bill would define "slack fill" as the
difference between the actual capacity of a container and the
volume of the product it contains, and "nonfunctional slack
fill" as the empty space in a package filled to less than
capacity for reasons other than those specified (see the 15
specific provisions enumerated in the bill), including:
1. For unavoidable product settling during shipping and
handling
2. Where mandatory labeling requirements necessitate extra
packaging
3. To discourage pilfering or to accommodate
tamper-resistant devices
4. Where extra space, such as head space, is needed for the
mixing or adding of liquids or powders prior to use
5. Where the contents are designed to serve a particular
function that is clearly disclosed on the exterior
packaging, such as computer hardware or software.
This bill would make identical, conforming changes to the
nonfunctional slack fill provisions of the Health and Safety
Code.
FISCAL EFFECT:
Unknown. This is a fiscal bill.
COMMENTS:
1. Sponsorship and purpose
This bill is jointly sponsored by the Toy Manufacturers of
America, The Cosmetic, Toiletry, and Fragrance Association,
Association for California Tort Reform (ACTR), Hasbro, Lego,
Mattel, S. C. Johnson & Son, Sierra On-Line, and The Dial
Corporation to address issues raised by a number of lawsuits
against businesses such as computer software, cosmetic, and toy
companies. These lawsuits, filed under the Unfair Competition
Act (BPC 17200 ff.), have been based upon alleged violations
of the slack fill laws (BPC 12606; HSC 110375).
According to the author, this bill reflects a compromise
agreement between a range of business interests (the sponsors),
district attorneys, consumer attorneys, and others. The author
states that the issue arose in the context of AB 1295 (Caldera)
which proposed major changes to the Unfair Competition Act
(UCA). That bill was strongly opposed by the non-business
parties noted above, and failed passage in the Assembly
Judiciary Committee. However, the author states, a number of
committee members expressed sympathy that the slack fill law was
used in connection with the UCA. Specifically, numerous
lawsuits have been filed against businesses such as computer
software companies, cosmetic companies, and others alleging
unfair competition because the packages were allegedly in
violation of the slack fill laws (i.e., the packages were much
larger than the product inside). The author states that members
of the committee suggested that the slack fill laws rather than
the UCA, might be the problem, and urged the parties to work on
a resolution by amending the slack fill law. SB 1394 is the
result of that process.
2. Examples of slack fill cases under current law
The following are some of the numerous examples cited by the
sponsors to illustrate the kinds of lawsuits which prompted this
bill:
A. Toys. Lego has been sued for slack fill on its "Aqua
Zone" building sets. The boxes which contain the sets are
uniform in size, and contain from 29 to 33 pieces, depending on
the set. Each box contains an "actual size" representation of
the pieces and a clear and conspicuous disclosure as to the
number of pieces.
B. Cosmetics. Eight fragrance and perfume manufacturers have
been sued because of claims that the gift and holiday packages
containing the fragrances were too large given the size of the
perfume bottles.
C. Cleaning products. Johnson Wax has been sued for its
packaging of Glade Carpet and Room Freshener powder. The
container clearly indicates the weight of the contents and the
expected number of uses. It is unit priced for comparison
purposes.
D. Software. At least ten software makers have been sued
because of claims that their retail software packages are "too
large." This is particularly egregious in the case of computer
software because there is obviously no deception--any purchaser
knows they are getting a CD-ROM or 3.5 or 5.25 inch disk and an
instruction manual.
E. Non-prescription drugs. Wieder Nutrition has been sued
for its vitamin tablet packaging because the protective cotton
ball allegedly constitutes empty space.
3. Clarifying reasonable perameters rather than lowering
consumer protections
The slack fill law defines certain types of packaging as
misleading, and states that such packaging is illegal.
Currently there are only two narrow exemptions to that law: (1)
for protecting the contents of the package, and (2) for
requirements of machines used to enclose the contents in the
package. However, according to the author, the district
attorneys generally operate on the basis of Slack Fill
Enforcement Guidelines agreed to in 1988 by the Attorney
General, the Department of Food and Agriculture and the
California Association of Weights and Measures Officials.
This bill's proposal to expand the two exemptions of current law
to fifteen exemptions, might appear at first glance to be a
lowering of standards, resulting in a lowering of consumer
protections. However, this bill maintains a strong stance
against misleading and fraudulent packaging practices, yet it
proposes reasonable parameters to the slack fill law which takes
into account the needs of consumers as well as the wide range of
product packaging needs for businesses.
The author states that AB 1394 would essentially codify the
enforcement guidelines, along with some concepts of federal law,
and other reasonable proposals by prosecutors.
4. Policy issue - should identical amendments be made in the
Health and Safety Code?
This bill would place the same slack fill law perameters in both
the Health and Safety Code (HSC) and the Business and
Professions Code (BPC). The current HSC slack fill provisions
are found in the Sherman Food, Drug, and Cosmetic Law which
pertains primarily to cosmetics, health related devices, and
drugs, and is enforced by the Department of Health Services.
In that light the Business and Professions Committee may wish to
have the proponents discuss whether it is necessary, or even
appropriate to place in the HSC amendments which are identical
to those placed in the BPC - especially those relating to
computer hardware and software packaging ( 110375 (b) (15)),
and those authorizing "sealers" to take action against
violations
( 110375 (c)).
5. Prior legislation - SB 735 (Marks, Chapter 849, Statutes of
1995).
AB 1394 mirrors much of the language of SB 735 (Marks, Chapter
849, Statutes of 1995). However, SB 735 only pertained to food
containers and not to other packaged commodities. That bill was
jointly sponsored by the Los Angeles District Attorney and
Ventura District Attorney to conform California law to federal
law (the federal Food, Drug and Cosmetic Act).
Support and Opposition:
Support: Toy Manufacturers of America
The Cosmetic, Toiletry, and Fragrance Association
Association for California Tort Reform (ACTR)
Hasbro
Lego
Mattel
S. C. Johnson & Son
Sierra On-Line
The Dial Corporation
California District Attorneys Association (CDAA)
California Retailers Association
Opposition:None received.
Consultant:Glen V. Ayers