Amended in Senate April 16, 2013

Senate Bill No. 465

Introduced by Senator Correa

February 21, 2013

An act to amend Section begin delete 12603 end delete begin insert 12606 end insert of the Business and Professions Code, relating to packaging and labeling.

LEGISLATIVE COUNSEL’S DIGEST

SB 465, as amended, Correa. Fair Packaging and Labeling begin delete Act. end delete begin insert Act: containers: slack fill end insert begin insert . end insert

Existing law establishes the Department of Food and Agriculture and sets forth its powers and duties, including, but not limited to, enforcement of the Fair Packaging and Labeling Act. The act prohibits begin insert specified end insert persons from distributing any packaged commodity that is not in conformity with prescribed packaging and labeling requirements begin insert , except as provided end insert . begin insert The act prohibits a container wherein 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. The act prohibits a container from being made, formed, or filled as to be misleading. The act provides that a container that does not allow a consumer to fully view its contents violates this provision if it contains nonfunctional slack fill. The act provides that nonfunctional slack fill is the empty space in a package that is filled to less than its capacity for other than specified reasons. end insert

begin insert

The bill would specify that the presence of nonfunctional slack fill in a package is required for a violation of any of these container-related provisions. This bill would specify that nonfunctional 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. The bill also would declare that the changes to these provisions do not constitute a change in, but are declaratory of, existing law.

end insert begin delete

This bill would make nonsubstantive changes to the latter provision.

end delete

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 12606 of the end insert begin insert Business and Professions
Code end insert begin insert is amended to read: end insert

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 begin insert , except that the
presence of nonfunctional slack fill as specified in subdivision (c)
shall be required for any violation of this provision end insert .

(b) No container shall be made, formed, or filled as to be
misleading begin insert , except that the presence of nonfunctional slack fill as
specified in subdivision (c) shall be required for any violation of
this provision end insert . begin delete 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 end delete

begin insert (c) end insert begin insert   end insert begin insert As used in this section, end insert begin insert slack end insert 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 begin insert substantially end insert less than its capacity for
reasons other than begin insert any one or more of end insert 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 begin insert any side of end insert 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 headspace 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 multiunit
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.

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(c)

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begin insert ( end insert begin insert d) end insert  Any sealer may seize a container that facilitates the
perpetration of deception or fraud and the contents of the container.
By order of the superior court of the county within which a
violation of this section occurs, the containers seized shall be
condemned and destroyed or released upon conditions 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.
A proceeding under this section is a limited civil case if the value
of the property in controversy is less than or equal to the maximum
amount in controversy for a limited civil case under Section 85 of
the Code of Civil Procedure.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert The amendments to Section 12606 of the Business and
Professions Code made by Section 1 of this act do not constitute
a change in, but are declaratory of, existing law. end insert

begin delete

SECTION 1.  

Section 12603 of the Business and Professions
Code is amended to read:

12603.  

A person subject to the prohibition in Section 12602
shall not distribute any packaged commodity unless it is in
conformity with regulations that shall be established by the director
that shall provide:

(a) The commodity shall bear a label specifying the identity of
the commodity and the name and place of business of the
manufacturer, packer, or distributor.

(b) The net quantity of contents (in terms of weight or mass,
measure, numerical count, or time) shall be separately and
accurately stated in a uniform location upon the principal display
panel of that label, using the most appropriate units of both the
customary inch-pound system of measure, and except as provided
in subdivisions (c) and (d), the SI (Systeme International d’Unites)
metric system.

(c) On a random package labeled in terms of pounds and decimal
fractions of the pound, the statement may be carried out to not
more than three decimal places and is not required to, but may
include a statement in terms of the SI metric system carried out to
not more than three decimal places.

(d) The requirements of subdivision (b) concerning labeling
using the metric system do not apply to nonconsumer packages,
foods that are packaged at the retail store level, or to the sale or
distribution of products whose labels have been printed prior to
February 14, 1994.

(e) This section shall become operative on February 14, 1994.

end delete