SB 465,
as amended, Correa. begin deleteFair end deletePackaging andbegin delete Labeling Actend deletebegin insert labelingend insert: containers: slack fill.
Existing
end deletebegin insert(1)end insertbegin insert end insertbegin insertExistingend insert 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 specified persons from distributing any packaged commodity that is not in conformity with prescribed packaging and labeling requirements, except as provided. 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.
begin insertThe act also prohibits a food container, subject to the Federal Food, Drug, and Cosmetic Act, 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. However, existing law provides that these state provisions regarding food containers are operative only to the extent they are identical to specified federal requirements.
end insertThe
end deletebegin insertSubject to the requirement that food containers conform to those federal requirements, theend insert 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.
begin insert(2) Existing law also provides for the regulation by the State Department of Public Health of the packaging and labeling of foods, drugs, devices, and cosmetics, and provides requirements for containers containing these commodities that are similar to existing requirements for containers under the Fair Packaging and Labeling Act.
end insertbegin insertThe bill would specify that the presence of nonfunctional slack fill in a package is required for a violation of these 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 referenced above. The bill also would declare that the changes to these provisions do not constitute a change in, but are declaratory of, existing law.
end insertVote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 12606 of the Business and Professions
2Code is amended to read:
(a) No container wherein commodities are packed shall
4have a false bottom, false sidewalls, false lid or covering, or be
5otherwise so constructed or filled, wholly or partially, as to
6facilitate the perpetration of deception or fraud, except that the
P3 1presence of nonfunctional slack fill as specified in subdivision (c)
2shall be required for any violation of this provision.
3(b) No container shall be made, formed, or filled as to be
4misleading, except that the presence of nonfunctional slack fill as
5specified in subdivision (c) shall be required for any violation of
6this provision.
7(c) As used
in this section, slack fill is the difference between
8the actual capacity of a container and the volume of product
9contained therein. Nonfunctional slack fill is the empty space in
10a package that is filled to substantially less than its capacity for
11reasons other than any one or more of the following:
12(1) Protection of the contents of the package.
13(2) The requirements of machines used for enclosing the
14contents of the package.
15(3) Unavoidable product settling during shipping and handling.
16(4) The need to utilize a larger than required package or
17container to provide adequate space for the legible presentation of
18mandatory and necessary labeling information, such as
those based
19on the regulations adopted by the Food and Drug Administration
20or state or federal agencies under federal or state law, laws or
21regulations adopted by foreign governments, or under an
22industrywide voluntary labeling program.
23(5) The fact that the product consists of a commodity that is
24packaged in a decorative or representational container where the
25container is part of the presentation of the product and has value
26that is both significant in proportion to the value of the product
27and independent of its function to hold the product, such as a gift
28combined with a container that is intended for further use after the
29product is consumed, or durable commemorative or promotional
30packages.
31(6) An inability to increase the level of fill or to further reduce
32the size
of the package, such as where some minimum package
33size is necessary to accommodate required labeling, discourage
34pilfering, facilitate handling, or accommodate tamper-resistant
35devices.
36(7) The product container bears a reasonable relationship to the
37actual amount of product contained inside, and the dimensions of
38the actual product container, the product, or the amount of product
39therein is visible to the consumer at the point of sale, or where
40obvious secondary use packaging is involved.
P4 1(8) The dimensions of the product or immediate product
2container are visible through the exterior packaging, or where the
3actual size of the product or immediate product container is clearly
4and conspicuously depicted on any side of the exterior packaging,
5accompanied by a clear and
conspicuous disclosure that the
6representation is the “actual size” of the product or the immediate
7product container.
8(9) The presence of any headspace within an immediate product
9container necessary to facilitate the mixing, adding, shaking, or
10dispensing of liquids or powders by consumers prior to use.
11(10) The exterior packaging contains a product delivery or
12dosing device if the device is visible, or a clear and conspicuous
13depiction of the device appears on the exterior packaging, or it is
14readily apparent from the conspicuous exterior disclosures or the
15nature and name of the product that a delivery or dosing device is
16contained in the package.
17(11) The exterior packaging or immediate product container is
18a
kit that consists of a system, or multiple components, designed
19to produce a particular result that is not dependent upon the
20quantity of the contents, if the purpose of the kit is clearly and
21conspicuously disclosed on the exterior packaging.
22(12) The exterior packaging of the product is routinely displayed
23using tester units or demonstrations to consumers in retail stores,
24so that customers can see the actual, immediate container of the
25product being sold, or a depiction of the actual size thereof prior
26to purchase.
27(13) The exterior packaging consists of single or multiunit
28presentation boxes of holiday or gift packages if the purchaser can
29adequately determine the quantity and sizes of the immediate
30product container at the point of sale.
31(14) The exterior packaging is for a combination of one
32purchased product, together with a free sample or gift, wherein
33the exterior packaging is necessarily larger than it would otherwise
34be due to the inclusion of the sample or gift, if the presence of both
35products and the quantity of each product are clearly and
36conspicuously disclosed on the exterior packaging.
37(15) The exterior packaging or immediate product container
38encloses computer hardware or software designed to serve a
39particular computer function, if the particular computer function
P5 1to be performed by the computer hardware or software is clearly
2and conspicuously disclosed on the exterior packaging.
3(d) Any sealer may seize a container that facilitates the
4perpetration of deception or fraud and the contents of
the container.
5By order of the superior court of the county within which a
6violation of this section occurs, the containers seized shall be
7condemned and destroyed or released upon conditions the court
8may impose to insure against their use in violation of this chapter.
9The contents of any condemned container shall be returned to the
10owner thereof if the owner furnishes proper facilities for the return.
11A proceeding under this section is a limited civil case if the value
12of the property in controversy is less than or equal to the maximum
13amount in controversy for a limited civil case under Section 85 of
14the Code of Civil Procedure.
begin insertSection 12606.2 of the end insertbegin insertBusiness and Professions Codeend insert
16begin insert is amended to read:end insert
(a) This section applies to food containers subject to
18Section 403 (d) of the Federal Food, Drug, and Cosmetic Act (21
19U.S.C. Sec. 343 (d)), and Section 100.100 of Title 21 of the Code
20of Federal Regulations. Section 12606 does not apply to food
21containers subject to this section.
22(b) No food containers shall be made, formed, or filled as to be
23misleadingbegin insert, except that the presence of nonfunctional slack fill as
24specified in subdivision (c) shall be required for any violation of
25this provisionend insert.
26(c) begin deleteA container that does not allow the consumer to fully view begin insertAs
used in this section,
27its contents shall be considered to be filled as to be misleading if
28it contains nonfunctional slack fill. Slack end delete
29slack end insertfill is the difference between the actual capacity of a container
30and the volume of product contained therein. Nonfunctional slack
31fill is the empty space in a package that is filled tobegin insert substantiallyend insert
32 less than its capacity for reasons other thanbegin insert any one or more ofend insert the
33following:
34(1) Protection of the contents of the package.
35(2) The requirements of the machines used for enclosing the
36contents in the package.
37(3) Unavoidable product settling during shipping and handling.
38(4) The need for
the package to perform a specific function,
39such as where packaging plays a role in the preparation or
P6 1consumption of a food, if that function is inherent to the nature of
2the food and is clearly communicated to consumers.
3(5) The fact that the product consists of a food packaged in a
4reusable container where the container is part of the presentation
5of the food and has value that is both significant in proportion to
6the value of the product and independent of its function to hold
7the food, such as a gift product consisting of a food or foods
8combined with a container that is intended for further use after the
9food is consumed or durable commemorative or promotional
10packages.
11(6) Inability to increase the level of fill or to further reduce the
12size of the package, such as where some minimum package size
13is necessary to accommodate required food labeling exclusive of
14any vignettes
or other nonmandatory designs or label information,
15discourage pilfering, facilitate handling, or accommodate
16tamper-resistant devices.
17(d) This section shall be interpreted consistent with the
18comments by the United States Food and Drug Administration on
19the regulations contained in Section 100.100 of Title 21 of the
20Code of Federal Regulations, interpreting Section 403(d) of the
21Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)),
22as those comments are reported on pages 64123 to 64137, inclusive,
23of Volume 58 of the Federal Register.
24(e) If the requirements of this section do not impose the same
25requirements as are imposed by Section 403(d) of the Federal
26Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)), or any
27regulation promulgated pursuant thereto, then this section is not
28operative to the extent that it is not identical to the federal
29requirements, and for this
purpose those federal requirements are
30incorporated into this section and shall apply as if they were set
31forth in this section.
32(f) Any sealer may seize any container that is in violation of
33this section and the contents of the container. By order of the
34superior court of the county within which a violation of this section
35occurs, the containers seized shall be condemned and destroyed
36or released upon any conditions that the court may impose to ensure
37against their use in violation of this chapter. The contents of any
38condemned container shall be returned to the owner thereof if the
39owner furnishes proper facilities for the return. A proceeding under
40this section is a limited civil case if the value of the property in
P7 1controversy is less than or equal to the maximum amount in
2controversy for a limited civil case under Section 85 of the Code
3of Civil Procedure.
begin insertSection 110375 of the end insertbegin insertHealth and Safety Codeend insertbegin insert is
5amended to read:end insert
(a) No container wherein commodities are packed
7shall have a false bottom, false sidewalls, false lid or covering, or
8be otherwise so constructed or filled, wholly or partially, as to
9facilitate the perpetration of deception or fraudbegin insert, except that the
10presence of nonfunctional slack fill as specified in subdivision (c)
11shall be required for any violation of this provisionend insert.
12(b) No container shall be made, formed, or filled as to be
13misleadingbegin insert, except that the presence of nonfunctional slack fill as
14specified in subdivision (c) shall
be required for any violation of
15this provisionend insert.begin delete A container that does not allow the consumer to
16fully view its contents shall be considered to be filled as to be
17misleading if it contains nonfunctional slack fill.end deletebegin delete Slackend delete
18begin insert(c)end insertbegin insert end insertbegin insertAs used in this section, end insertbegin insertslackend insert fill is the difference between
19the actual capacity of a container and the volume of product
20contained therein. Nonfunctional slack fill is the empty space in
21a package that is filled tobegin insert
substantiallyend insert less than its capacity for
22reasons other thanbegin insert any one or more ofend insert the following:
23(1) Protection of the contents of the package.
24(2) The requirements of machines used for enclosing the
25contents of the package.
26(3) Unavoidable product settling during shipping and handling.
27(4) The need to utilize a larger than required package or
28container to provide adequate space for the legible presentation of
29mandatory and necessary labeling information, such as those based
30on the regulations adopted by the Food and Drug Administration
31or state or federal agencies under federal or state law, laws or
32
regulations adopted by foreign governments, or under an
33industrywide voluntary labeling program.
34(5) The fact that the product consists of a commodity that is
35packaged in a decorative or representational container where the
36container is part of the presentation of the product and has value
37that is both significant in proportion to the value of the product
38and independent of its function to hold the product, such as a gift
39combined with a container that is intended for further use after the
P8 1product is consumed, or durable commemorative or promotional
2packages.
3(6) An inability to increase the level of fill or to further reduce
4the size of the package, such as where some minimum package
5size is necessary to accommodate required labeling, discourage
6pilfering, facilitate handling, or accommodate tamper-resistant
7devices.
8(7) The product container bears a reasonable relationship to the
9actual amount of product contained inside, and the dimensions of
10the actual product container, the product, or the amount of product
11therein is visible to the consumer at the point of sale, or where
12obvious secondary use packaging is involved.
13(8) The dimensions of the product or immediate product
14container are visible through the exterior packaging, or where the
15actual size of the product or immediate product container is clearly
16and conspicuously depicted onbegin insert
any side ofend insert the exterior packaging,
17accompanied by a clear and conspicuous disclosure that the
18representation is the “actual size” of the product or the immediate
19product container.
20(9) The presence of any headspace within an immediate product
21container necessary to facilitate the mixing, adding, shaking, or
22dispensing of liquids or powders by consumers prior to use.
23(10) The exterior packaging contains a product delivery or
24dosing device if the device is visible, or a clear and conspicuous
25depiction of the device appears on the exterior packaging, or it is
26readily apparent from the conspicuous exterior disclosures or the
27nature and name of the product that a delivery or dosing device is
28contained in the package.
29(11) The exterior packaging or immediate product container is
30
a kit that consists of a system, or multiple components, designed
31to produce a particular result that is not dependent upon the
32quantity of the contents, if the purpose of the kit is clearly and
33conspicuously disclosed on the exterior packaging.
34(12) The exterior packaging of the product is routinely displayed
35using tester units or demonstrations to consumers in retail stores,
36so that customers can see the actual, immediate container of the
37product being sold, or a depiction of the actual size of the container
38prior to purchase.
39(13) The exterior packaging consists of single or multiunit
40presentation boxes of holiday or gift packages if the purchaser can
P9 1adequately determine the quantity and sizes of the immediate
2product container at the point of sale.
3(14) The exterior packaging is for a combination of one
4
purchased product, together with a free sample or gift, wherein
5the exterior packaging is necessarily larger than it would otherwise
6be due to the inclusion of the sample or gift, if the presence of both
7products and the quantity of each product are clearly and
8conspicuously disclosed on the exterior packaging.
9(c)
end delete
10begin insert(end insertbegin insertd)end insert Any sealer may seize a container that facilitates the
11perpetration of deception or fraud and the contents of the container.
12By order of the superior court of the county within which a
13violation of this section occurs, the containers seized shall be
14condemned and destroyed or released upon any condition as the
15court may impose to ensure against their use in violation of this
16chapter. The contents of any condemned container shall be returned
17to the owner if the owner furnishes proper facilities for the return.
The amendments to Section 12606 of the Business and
20Professions Code made by Section 1 of this actbegin insert, the amendments
21to Section 12606.2 of the Business and Professions Code made by
22Section 2 of this act, and the amendments to Section 110375 of the
23Health and Safety Code made by Section 3 of this actend insert do not
24constitute a change in, but are declaratory of, existing law.
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