Amended in Assembly August 19, 2013

Amended in Assembly August 7, 2013

Amended in Senate April 23, 2013

Amended in Senate April 16, 2013

Senate BillNo. 465


Introduced by Senator Correa

February 21, 2013


An act to amend Sections 12606 and 12606.2 of the Business and Professions Code, and to amend Section 110375 of the Health and Safety Code, relating to packaging and labeling.

LEGISLATIVE COUNSEL’S DIGEST

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 would define nonfunctional slack fill instead as 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 insert Except with respect to food containers, the bill would provide that slack fill in a package shall not be used as grounds to allege a violation of specified provisions based end insertbegin inserton its presence unless it is nonfunctional slack fill.end insert

(2) Existingbegin delete lawend deletebegin insert law, the Shermanend insertbegin insert Food, Drug, and Cosmetic Law,end insert 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 would define nonfunctional slack fill instead as 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 insert end insertbegin insertThe bill would provide that slack fill in a package shall not be used as grounds to allege a violation of specified provisions based end insertbegin inserton its presence unless it is nonfunctional slack fill.end insert

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

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

P2    1

SECTION 1.  

Section 12606 of the Business and Professions
2Code
is amended to read:

3

12606.  

(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.

P3    1(b) No container shall be made, formed, or filled as to be
2 misleading. A container that does not allow the consumer to fully
3view its contents shall be considered to be filled as to be misleading
4if it contains nonfunctional slack fill. Slack fill is the difference
5between the actual capacity of a container and the volume of
6product contained therein. Nonfunctional slack fill is the empty
7space in a package that is filled to substantially less than its
8capacity for reasons other than any one or more of the following:

9(1) Protection of the contents of the package.

10(2) The requirements of machines used for enclosing the
11contents of the package.

12(3) Unavoidable product settling during shipping and handling.

13(4) The need to utilize a larger than required package or
14container to provide adequate space for the legible presentation of
15mandatory and necessary labeling information, such as those based
16on the regulations adopted by the United States Food and Drug
17Administration or state or federal agencies under federal or state
18law, laws or regulations adopted by foreign governments, or under
19an industrywide voluntary labeling program.

20(5) The fact that the product consists of a commodity that is
21packaged in a decorative or representational container where the
22container is part of the presentation of the product and has value
23that is both significant in proportion to the value of the product
24and independent of its function to hold the product, such as a gift
25combined with a container that is intended for further use after the
26product is consumed, or durable commemorative or promotional
27packages.

28(6) An inability to increase the level of fill or to further reduce
29the size of the package, such as where some minimum package
30size is necessary to accommodate required labeling, discourage
31pilfering, facilitate handling, or accommodate tamper-resistant
32devices.

33(7) The product container bears a reasonable relationship to the
34actual amount of product contained inside, and the dimensions of
35the actual product container, the product, or the amount of product
36therein is visible to the consumer at the point of sale, or where
37obvious secondary use packaging is involved.

38(8) The dimensions of the product or immediate product
39container are visible through the exterior packaging, or where the
40actual size of the product or immediate product container is clearly
P4    1and conspicuously depicted on any side of the exterior packaging
2excluding the bottom, accompanied by a clear and conspicuous
3disclosure that the representation is the “actual size” of the product
4or the immediate product container.

5(9) The presence of any headspace within an immediate product
6container necessary to facilitate the mixing, adding, shaking, or
7dispensing of liquids or powders by consumers prior to use.

8(10) The exterior packaging contains a product delivery or
9dosing device if the device is visible, or a clear and conspicuous
10depiction of the device appears on the exterior packaging, or it is
11readily apparent from the conspicuous exterior disclosures or the
12nature and name of the product that a delivery or dosing device is
13contained in the package.

14(11) The exterior packaging or immediate product container is
15a kit that consists of a system, or multiple components, designed
16to produce a particular result that is not dependent upon the
17quantity of the contents, if the purpose of the kit is clearly and
18conspicuously disclosed on the exterior packaging.

19(12) The exterior packaging of the product is routinely displayed
20using tester units or demonstrations to consumers in retail stores,
21so that customers can see the actual, immediate container of the
22product being sold, or a depiction of the actual size thereof prior
23to purchase.

24(13) The exterior packaging consists of single or multiunit
25presentation boxes of holiday or gift packages if the purchaser can
26adequately determine the quantity and sizes of the immediate
27product container at the point of sale.

28(14) The exterior packaging is for a combination of one
29purchased product, together with a free sample or gift, wherein
30the exterior packaging is necessarily larger than it would otherwise
31be due to the inclusion of the sample or gift, if the presence of both
32products and the quantity of each product are clearly and
33conspicuously disclosed on the exterior packaging.

34(15) The exterior packaging or immediate product container
35encloses computer hardware or software designed to serve a
36particular computer function, if the particular computer function
37to be performed by the computer hardware or software is clearly
38and conspicuously disclosed on the exterior packaging.

begin insert

P5    1(c) Slack fill in a package shall not be used as grounds to allege
2a violation of this section based solely on its presence unless it is
3nonfunctional slack fill.

end insert
begin delete

4(c)

end delete

5begin insert(end insertbegin insertd)end insert Any sealer may seize a container that facilitates the
6perpetration of deception or fraud and the contents of the container.
7By order of the superior court of the county within which a
8violation of this section occurs, the containers seized shall be
9condemned and destroyed or released upon conditions the court
10may impose to insure against their use in violation of this chapter.
11The contents of any condemned container shall be returned to the
12owner thereof if the owner furnishes proper facilities for the return.
13A proceeding under this section is a limited civil case if the value
14of the property in controversy is less than or equal to the maximum
15amount in controversy for a limited civil case under Section 85 of
16the Code of Civil Procedure.

17

SEC. 2.  

Section 12606.2 of the Business and Professions Code
18 is amended to read:

19

12606.2.  

(a) This section applies to food containers subject to
20Section 403(d) of the Federal Food, Drug, and Cosmetic Act (21
21U.S.C. Sec. 343(d)), and Section 100.100 of Title 21 of the Code
22of Federal Regulations. Section 12606 does not apply to food
23containers subject to this section.

24(b) No food containers shall be made, formed, or filled as to be
25 misleading.

26(c) A container that does not allow the consumer to fully view
27its contents shall be considered to be filled as to be misleading if
28it contains nonfunctional slack fill. Slack fill is the difference
29between the actual capacity of a container and the volume of
30product contained therein. Nonfunctional slack fill is the empty
31space in a package that is filled to substantially less than its
32capacity for reasons other than any one or more of the following:

33(1) Protection of the contents of the package.

34(2) The requirements of the machines used for enclosing the
35contents in the package.

36(3) Unavoidable product settling during shipping and handling.

37(4) The need for the package to perform a specific function,
38such as where packaging plays a role in the preparation or
39consumption of a food, if that function is inherent to the nature of
40the food and is clearly communicated to consumers.

P6    1(5) The fact that the product consists of a food packaged in a
2reusable container where the container is part of the presentation
3of the food and has value that is both significant in proportion to
4the value of the product and independent of its function to hold
5the food, such as a gift product consisting of a food or foods
6combined with a container that is intended for further use after the
7food is consumed or durable commemorative or promotional
8packages.

9(6) Inability to increase the level of fill or to further reduce the
10size of the package, such as where some minimum package size
11is necessary to accommodate required food labeling exclusive of
12any vignettes or other nonmandatory designs or label information,
13discourage pilfering, facilitate handling, or accommodate
14tamper-resistant devices.

15(d) This section shall be interpreted consistent with the
16comments by the United States Food and Drug Administration on
17the regulations contained in Section 100.100 of Title 21 of the
18Code of Federal Regulations, interpreting Section 403(d) of the
19Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)),
20as those comments are reported on pages 64123 to 64137, inclusive,
21of Volume 58 of the Federal Register.

22(e) If the requirements of this section do not impose the same
23requirements as are imposed by Section 403(d) of the Federal
24Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)), or any
25regulation promulgated pursuant thereto, then this section is not
26operative to the extent that it is not identical to the federal
27requirements, and for this purpose those federal requirements are
28incorporated into this section and shall apply as if they were set
29forth in this section.

30(f) Any sealer may seize any container that is in violation of
31this section and the contents of the container. By order of the
32superior court of the county within which a violation of this section
33occurs, the containers seized shall be condemned and destroyed
34or released upon any conditions that the court may impose to ensure
35against their use in violation of this chapter. The contents of any
36condemned container shall be returned to the owner thereof if the
37owner furnishes proper facilities for the return. A proceeding under
38this section is a limited civil case if the value of the property in
39controversy is less than or equal to the maximum amount in
P7    1controversy for a limited civil case under Section 85 of the Code
2of Civil Procedure.

3

SEC. 3.  

Section 110375 of the Health and Safety Code is
4amended to read:

5

110375.  

(a)  No container wherein commodities are packed
6shall have a false bottom, false sidewalls, false lid or covering, or
7be otherwise so constructed or filled, wholly or partially, as to
8facilitate the perpetration of deception or fraud.

9(b)  No container shall be made, formed, or filled as to be
10misleading. A container that does not allow the consumer to fully
11view its contents shall be considered to be filled as to be misleading
12if it contains nonfunctional slack fill. Slack fill is the difference
13between the actual capacity of a container and the volume of
14product contained therein. Nonfunctional slack fill is the empty
15space in a package that is filled to substantially less than its
16capacity for reasons other than any one or more of the following:

17(1) Protection of the contents of the package.

18(2) The requirements of machines used for enclosing the
19contents of the package.

20(3) Unavoidable product settling during shipping and handling.

21(4) The need to utilize a larger than required package or
22container to provide adequate space for the legible presentation of
23mandatory and necessary labeling information, such as those based
24on the regulations adopted by the United States Food and Drug
25Administration or state or federal agencies under federal or state
26law, laws or regulations adopted by foreign governments, or under
27an industrywide voluntary labeling program.

28(5) The fact that the product consists of a commodity that is
29packaged in a decorative or representational container where the
30container is part of the presentation of the product and has value
31 that is both significant in proportion to the value of the product
32and independent of its function to hold the product, such as a gift
33combined with a container that is intended for further use after the
34product is consumed, or durable commemorative or promotional
35packages.

36(6) An inability to increase the level of fill or to further reduce
37the size of the package, such as where some minimum package
38size is necessary to accommodate required labeling, discourage
39pilfering, facilitate handling, or accommodate tamper-resistant
40devices.

P8    1(7) The product container bears a reasonable relationship to the
2actual amount of product contained inside, and the dimensions of
3the actual product container, the product, or the amount of product
4therein is visible to the consumer at the point of sale, or where
5obvious secondary use packaging is involved.

6(8) The dimensions of the product or immediate product
7container are visible through the exterior packaging, or where the
8actual size of the product or immediate product container is clearly
9and conspicuously depicted on any side of the exterior packaging
10excluding the bottom, accompanied by a clear and conspicuous
11disclosure that the representation is the “actual size” of the product
12or the immediate product container.

13(9) The presence of any headspace within an immediate product
14container necessary to facilitate the mixing, adding, shaking, or
15dispensing of liquids or powders by consumers prior to use.

16(10) The exterior packaging contains a product delivery or
17dosing device if the device is visible, or a clear and conspicuous
18depiction of the device appears on the exterior packaging, or it is
19readily apparent from the conspicuous exterior disclosures or the
20nature and name of the product that a delivery or dosing device is
21contained in the package.

22(11) The exterior packaging or immediate product container is
23 a kit that consists of a system, or multiple components, designed
24to produce a particular result that is not dependent upon the
25quantity of the contents, if the purpose of the kit is clearly and
26conspicuously disclosed on the exterior packaging.

27(12) The exterior packaging of the product is routinely displayed
28using tester units or demonstrations to consumers in retail stores,
29so that customers can see the actual, immediate container of the
30product being sold, or a depiction of the actual size of the container
31prior to purchase.

32(13) The exterior packaging consists of single or multiunit
33presentation boxes of holiday or gift packages if the purchaser can
34adequately determine the quantity and sizes of the immediate
35product container at the point of sale.

36(14) The exterior packaging is for a combination of one
37 purchased product, together with a free sample or gift, wherein
38the exterior packaging is necessarily larger than it would otherwise
39be due to the inclusion of the sample or gift, if the presence of both
P9    1products and the quantity of each product are clearly and
2conspicuously disclosed on the exterior packaging.

begin insert

3(c) Slack fill in a package shall not be used as grounds to allege
4a violation of this section based solely on its presence unless it is
5nonfunctional slack fill.

end insert
begin delete

6(c)

end delete

7begin insert(end insertbegin insertd)end insert Any sealer may seize a container that facilitates the
8perpetration of deception or fraud and the contents of the container.
9By order of the superior court of the county within which a
10violation of this section occurs, the containers seized shall be
11condemned and destroyed or released upon any condition as the
12court may impose to ensure against their use in violation of this
13chapter. The contents of any condemned container shall be returned
14to the owner if the owner furnishes proper facilities for the return.



O

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