SB 465, as amended, Correa. Packaging and labeling: containers: slack fill.
(1) 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 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.
The 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.
Subject to the requirement that food containers conform to those federal requirements, the bill wouldbegin delete 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
thatend deletebegin insert defineend insert nonfunctional slack fillbegin delete isend deletebegin insert instead asend insert 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.begin delete The bill also would declare that the changes to these provisions do not constitute a change in, but are declaratory of, existing law.end delete
(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.
The bill wouldbegin delete specify that the presence of nonfunctional slack fill in a package is required for a violation of these provisions. This bill would specify
thatend deletebegin insert defineend insert nonfunctional slack fillbegin delete isend deletebegin insert instead asend insert 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.begin delete The bill also would declare that the changes to these provisions do not constitute a change in, but are declaratory of, existing law.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:
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
P3 1facilitate the perpetration of deception orbegin delete fraud, except that the begin insert fraud.end insert
2presence of nonfunctional slack fill as specified in subdivision (c)
3shall be required for any violation of this provision.end delete
4(b) No container shall be made, formed, or filled as to be
5begin deletemisleading, except that the presence of nonfunctional slack fill as begin insert
misleading. A container that does not allow the
6specified in subdivision (c) shall be required for any violation of
7this provision.end delete
8consumer to fully view its contents shall be considered to be filled
9as to be misleading if it contains nonfunctional slack fill. end insertbegin insertSlack fill
10is the difference between the actual capacity of a container and
11the volume of product contained therein. Nonfunctional slack fill
12is the empty space in a package that is filled to substantially less
13than its capacity for reasons other than any one or more of the
14following:end insert
15(c) As used
in this section, slack fill is the difference between
16the actual capacity of a container and the volume of product
17contained therein. Nonfunctional slack fill is the empty space in
18a package that is filled to substantially less than its capacity for
19reasons other than any one or more of the following:
20(1) Protection of the contents of the package.
21(2) The requirements of machines used for enclosing the
22contents of the package.
23(3) Unavoidable product settling during shipping and handling.
24(4) The need to utilize a larger than required package or
25container to provide adequate space for the legible presentation of
26mandatory
and necessary labeling information, such as those based
27on the regulations adopted by thebegin insert United Statesend insert Food and Drug
28Administration or state or federal agencies under federal or state
29law, laws or regulations adopted by foreign governments, or under
30an industrywide voluntary labeling program.
31(5) The fact that the product consists of a commodity that is
32packaged in a decorative or representational container where the
33container is part of the presentation of the product and has value
34that is both significant in proportion to the value of the product
35and independent of its function to hold the product, such as a gift
36combined with a container that is intended for further use after the
37product is consumed, or durable commemorative or promotional
38packages.
39(6) An inability to increase the level of fill or to further reduce
40the size of the package, such as where some minimum package
P4 1size is necessary to accommodate required labeling, discourage
2pilfering, facilitate handling, or accommodate tamper-resistant
3devices.
4(7) The product container bears a reasonable relationship to the
5actual amount of product contained inside, and the dimensions of
6the actual product container, the product, or the amount of product
7therein is visible to the consumer at the point of sale, or where
8obvious secondary use packaging is involved.
9(8) The dimensions of the product or immediate product
10container are visible through the exterior packaging, or where the
11actual size of the product
or immediate product container is clearly
12and conspicuously depicted on any side of the exterior packaging
13begin insert excluding the bottomend insert, accompanied by a clear and conspicuous
14disclosure that the representation is the “actual size” of the product
15or the immediate product container.
16(9) The presence of any headspace within an immediate product
17container necessary to facilitate the mixing, adding, shaking, or
18dispensing of liquids or powders by consumers prior to use.
19(10) The exterior packaging contains a product delivery or
20dosing device if the device is visible, or a clear and conspicuous
21depiction of the device appears on the exterior packaging, or it is
22readily apparent from the conspicuous exterior
disclosures or the
23nature and name of the product that a delivery or dosing device is
24contained in the package.
25(11) The exterior packaging or immediate product container is
26a kit that consists of a system, or multiple components, designed
27to produce a particular result that is not dependent upon the
28quantity of the contents, if the purpose of the kit is clearly and
29conspicuously disclosed on the exterior packaging.
30(12) The exterior packaging of the product is routinely displayed
31using tester units or demonstrations to consumers in retail stores,
32so that customers can see the actual, immediate container of the
33product being sold, or a depiction of the actual size thereof prior
34to purchase.
35(13) The exterior
packaging consists of single or multiunit
36presentation boxes of holiday or gift packages if the purchaser can
37adequately determine the quantity and sizes of the immediate
38product container at the point of sale.
39(14) The exterior packaging is for a combination of one
40purchased product, together with a free sample or gift, wherein
P5 1the exterior packaging is necessarily larger than it would otherwise
2be due to the inclusion of the sample or gift, if the presence of both
3products and the quantity of each product are clearly and
4conspicuously disclosed on the exterior packaging.
5(15) The exterior packaging or immediate product container
6encloses computer hardware or software designed to serve a
7particular computer function, if the particular computer function
8to be performed by
the computer hardware or software is clearly
9and conspicuously disclosed on the exterior packaging.
10(d)
end delete
11begin insert(c)end insert Any sealer may seize a container that facilitates the
12perpetration of deception or fraud and the contents of the container.
13By order of the superior court of the county within which a
14violation of this section occurs, the containers seized shall be
15condemned and destroyed or released upon conditions the court
16may impose to insure against their use in violation of this chapter.
17The contents of any condemned container shall be returned to the
18owner thereof if the owner furnishes proper facilities for
the return.
19A proceeding under this section is a limited civil case if the value
20of the property in controversy is less than or equal to the maximum
21amount in controversy for a limited civil case under Section 85 of
22the Code of Civil Procedure.
Section 12606.2 of the Business and Professions Code
24 is amended to read:
(a) This section applies to food containers subject to
26Sectionbegin delete 403 (d)end deletebegin insert 403(d)end insert of the Federal Food, Drug, and Cosmetic
27Act (21 U.S.C. Sec.begin delete 343 (d)),end deletebegin insert 343(d)),end insert and Section 100.100 of Title
2821 of the Code of Federal Regulations. Section 12606 does not
29apply to food containers subject to this section.
30(b) No food
containers shall be made, formed, or filled as to be
31begin deletemisleading, except that the presence of nonfunctional slack fill as begin insert
misleading.end insert
32specified in subdivision (c) shall be required for any violation of
33this provision.end delete
34(c) begin deleteAs
used in this section, slack end delete
35the consumer to fully view its contents shall be considered to be
36filled as to be misleading if it contains nonfunctional slack fill.
37Slack end insertfill is the difference between the actual capacity of a container
38and the volume of product contained therein. Nonfunctional slack
39fill is the empty space in a package that is filled to substantially
P6 1less than its capacity for reasons other than any one or more of the
2following:
3(1) Protection of the contents of the package.
4(2) The requirements of the machines used for enclosing the
5contents in the package.
6(3) Unavoidable product settling during shipping and handling.
7(4) The need for the package to perform a specific function,
8such as where packaging plays a role in the preparation or
9consumption of a food, if that function is inherent to the nature of
10the food and is clearly communicated to consumers.
11(5) The fact that the product consists of a food packaged in a
12reusable container where the container is part of the presentation
13of the food and has value that is both significant in proportion to
14the value of the product and independent of its function to hold
15the food, such as a gift product consisting of a food or foods
16combined with a container that is intended for further use after the
17food is consumed or durable commemorative or promotional
18packages.
19(6) Inability to increase the level of fill or to further reduce the
20size of the package, such as where some minimum package size
21is necessary to accommodate required food labeling exclusive of
22any vignettes or other nonmandatory designs or label information,
23discourage pilfering, facilitate handling, or accommodate
24tamper-resistant devices.
25(d) This section shall be interpreted consistent with the
26comments by the United States Food and Drug Administration on
27the regulations contained in Section 100.100 of Title 21 of the
28Code of Federal Regulations, interpreting Section 403(d) of the
29Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)),
30as those comments are reported on pages 64123 to 64137, inclusive,
31of Volume 58 of the Federal Register.
32(e) If the
requirements of this section do not impose the same
33requirements as are imposed by Section 403(d) of the Federal
34Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)), or any
35regulation promulgated pursuant thereto, then this section is not
36operative to the extent that it is not identical to the federal
37requirements, and for this purpose those federal requirements are
38incorporated into this section and shall apply as if they were set
39forth in this section.
P7 1(f) Any sealer may seize any container that is in violation of
2this section and the contents of the container. By order of the
3superior court of the county within which a violation of this section
4occurs, the containers seized shall be condemned and destroyed
5or released upon any conditions that the court may impose to ensure
6against their use in violation of this chapter. The contents of
any
7condemned container shall be returned to the owner thereof if the
8owner furnishes proper facilities for the return. A proceeding under
9this section is a limited civil case if the value of the property in
10controversy is less than or equal to the maximum amount in
11controversy for a limited civil case under Section 85 of the Code
12of Civil Procedure.
Section 110375 of the Health and Safety Code is
14amended to read:
(a) No container wherein commodities are packed
16shall have a false bottom, false sidewalls, false lid or covering, or
17be otherwise so constructed or filled, wholly or partially, as to
18facilitate the perpetration of deception orbegin delete fraud, except that the begin insert fraud.end insert
19presence of nonfunctional slack fill as specified in subdivision (c)
20shall be required for any violation of this provision.end delete
21(b) No container shall be made, formed, or filled as to be begin delete22misleading, except that the presence of nonfunctional slack fill as
23specified in subdivision (c) shall
be required for any violation of
24this provision.end delete
25consumer to fully view its contents shall be considered to be filled
26as to be misleading if it contains nonfunctional slack fill. Slack fill
27is the difference between the actual capacity of a container and
28the volume of product contained therein. Nonfunctional slack fill
29is the empty space in a package that is filled to substantially less
30than its capacity for reasons other than any one or more of the
31following:end insert
32(c) As used in this section, slack fill is the difference between
33the actual capacity of a container and the volume of product
34contained therein. Nonfunctional slack fill is the empty space in
35a package that is filled to substantially less than its capacity for
36reasons
other than any one or more of the following:
37(1) Protection of the contents of the package.
38(2) The requirements of machines used for enclosing the
39contents of the package.
40(3) Unavoidable product settling during shipping and handling.
P8 1(4) The need to utilize a larger than required package or
2container to provide adequate space for the legible presentation of
3mandatory and necessary labeling information, such as those based
4on the regulations adopted by thebegin insert United Statesend insert Food and Drug
5Administration or state or federal agencies under federal or state
6law, laws
or
regulations adopted by foreign governments, or under
7an industrywide voluntary labeling program.
8(5) The fact that the product consists of a commodity that is
9packaged in a decorative or representational container where the
10container is part of the presentation of the product and has value
11that is both significant in proportion to the value of the product
12and independent of its function to hold the product, such as a gift
13combined with a container that is intended for further use after the
14product is consumed, or durable commemorative or promotional
15packages.
16(6) An inability to increase the level of fill or to further reduce
17the size of the package, such as where some minimum package
18size is necessary to accommodate required labeling, discourage
19pilfering,
facilitate handling, or accommodate tamper-resistant
20devices.
21(7) The product container bears a reasonable relationship to the
22actual amount of product contained inside, and the dimensions of
23the actual product container, the product, or the amount of product
24therein is visible to the consumer at the point of sale, or where
25obvious secondary use packaging is involved.
26(8) The dimensions of the product or immediate product
27container are visible through the exterior packaging, or where the
28actual size of the product or immediate product container is clearly
29and conspicuously depicted on any side of the exterior packaging
30begin insert excluding the bottomend insert, accompanied by a clear and conspicuous
31disclosure
that the representation is the “actual size” of the product
32or the immediate product container.
33(9) The presence of any headspace within an immediate product
34container necessary to facilitate the mixing, adding, shaking, or
35dispensing of liquids or powders by consumers prior to use.
36(10) The exterior packaging contains a product delivery or
37dosing device if the device is visible, or a clear and conspicuous
38depiction of the device appears on the exterior packaging, or it is
39readily apparent from the conspicuous exterior disclosures or the
P9 1nature and name of the product that a delivery or dosing device is
2contained in the package.
3(11) The exterior packaging or immediate product container is
4
a kit that consists of a system, or multiple components, designed
5to produce a particular result that is not dependent upon the
6quantity of the contents, if the purpose of the kit is clearly and
7conspicuously disclosed on the exterior packaging.
8(12) The exterior packaging of the product is routinely displayed
9using tester units or demonstrations to consumers in retail stores,
10so that customers can see the actual, immediate container of the
11product being sold, or a depiction of the actual size of the container
12prior to purchase.
13(13) The exterior packaging consists of single or multiunit
14presentation boxes of holiday or gift packages if the purchaser can
15adequately determine the quantity and sizes of the immediate
16product container at the point of sale.
17(14) The exterior packaging is for a combination of one
18
purchased product, together with a free sample or gift, wherein
19the exterior packaging is necessarily larger than it would otherwise
20be due to the inclusion of the sample or gift, if the presence of both
21products and the quantity of each product are clearly and
22conspicuously disclosed on the exterior packaging.
23(d)
end delete
24begin insert(c)end insert Any sealer may seize a container that facilitates the
25perpetration of deception or fraud and the contents of the container.
26By order of the superior court of the county within which a
27violation of this section occurs, the containers seized shall be
28condemned and destroyed or released upon any condition as the
29court
may impose to ensure against their use in violation of this
30chapter. The contents of any condemned container shall be returned
31to the owner if the owner furnishes proper facilities for the return.
The amendments to Section 12606 of the Business
33and Professions Code made by Section 1 of this act, the
34amendments to Section 12606.2 of the Business and Professions
35Code made by Section 2 of this act, and the amendments to Section
36110375 of the Health and Safety Code made by Section 3 of this
37act do not constitute a change in, but are declaratory of, existing
38law.
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