SB 465, as amended, Correa. Packaging and labeling: containers: slack fill.
(1) Existing
end delete
begin insert Existingend 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 abegin delete containerend deletebegin insert
commodities container, or a food container subject to the Federal Food, Drug, and Cosmetic Actend insert 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 insert end insertbegin insertHowever, existing law provides that these state provisions regarding food containers are operative only to the extent they are identical to specified federal requirements.end insert
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.
end deleteExisting law, the Sherman Food, Drug, and Cosmetic 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 the requirements for containers under the Fair Packaging and Labeling Act.
end insertSubject to the requirement that food containers conform to those federal requirements, the
end delete
begin insertThisend insert bill wouldbegin insert insteadend insert
define nonfunctional slack fillbegin delete insteadend deletebegin insert
for all of these provisionsend insert as the empty space in a package that is filled to substantially less than its capacity for other than any one or more of thebegin delete specifiedend deletebegin insert end insertbegin insertapplicableend insert reasons.begin delete Except with respect to food containers, theend deletebegin insert Theend insert bill would provide that slack fill in a package shall not be used as grounds to allege a violation ofbegin delete specifiedend deletebegin insert
the applicableend insert provisions basedbegin insert solelyend insert on its presencebegin insert in any of these types of packagesend insert unless it is nonfunctional slack fill.
(2) Existing law, the Sherman Food, Drug, and Cosmetic 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 deleteThe 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. The bill would provide that slack fill in a package shall not be used as grounds to allege a violation of specified provisions based on its presence unless it is nonfunctional slack fill.
end deleteVote: 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.
7(b) No container shall be made, formed, or filled as to be
8
misleading. A container that does not allow the consumer to fully
9view its contents shall be considered to be filled as to be misleading
10if it contains nonfunctional slack fill. Slack fill is the difference
11between the actual capacity of a container and the volume of
12product contained therein. Nonfunctional slack fill is the empty
13space in a package that is filled to substantially less than its
14capacity for reasons other than any one or more of the following:
15(1) Protection of the contents of the package.
16(2) The requirements of machines used for enclosing the
17contents of the package.
18(3) Unavoidable product settling during shipping and handling.
19(4) The
need to utilize a larger than required package or
20container to provide adequate space for the legible presentation of
21mandatory and necessary labeling information, such as those based
22on the regulations adopted by the United States Food and Drug
23Administration or state or federal agencies under federal or state
24law, laws or regulations adopted by foreign governments, or under
25an industrywide voluntary labeling program.
26(5) The fact that the product consists of a commodity that is
27packaged in a decorative or representational container where the
28container is part of the presentation of the product and has value
29that is both significant in proportion to the value of the product
30and independent of its function to hold the product, such as a gift
31combined with a container that is intended for further use after the
P4 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 on any side of the exterior packaging
17excluding the bottom, accompanied by a clear and conspicuous
18disclosure that the representation is the “actual size” of the product
19or the immediate product 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
30a 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 thereof prior
38to purchase.
39(13) The exterior packaging consists of single or multiunit
40presentation
boxes of holiday or gift packages if the purchaser can
P5 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
4purchased 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(15) The exterior packaging or immediate product container
10encloses computer hardware or software designed to serve a
11particular computer function, if the particular computer function
12to be performed by the computer hardware or software is clearly
13and
conspicuously disclosed on the exterior packaging.
14(c) Slack fill in a package shall not be used as grounds to allege
15a violation of this section based solely on its presence unless it is
16nonfunctional slack fill.
17(d) Any sealer may seize a container that facilitates the
18perpetration of deception or fraud and the contents of the container.
19By order of the superior court of the county within which a
20violation of this section occurs, the containers seized shall be
21condemned and destroyed or released upon conditions the court
22may impose to insure against their use in violation of this chapter.
23The contents of any condemned container shall be returned to the
24owner thereof if the owner furnishes proper facilities for the return.
25A proceeding under this section is a limited civil case if the
value
26of the property in controversy is less than or equal to the maximum
27amount in controversy for a limited civil case under Section 85 of
28the Code of Civil Procedure.
Section 12606.2 of the Business and Professions Code
30 is amended to read:
(a) This section applies to food containers subject to
32Section 403(d) of the Federal Food, Drug, and Cosmetic Act (21
33U.S.C. Sec. 343(d)), and Section 100.100 of Title 21 of the Code
34of Federal Regulations. Section 12606 does not apply to food
35containers subject to this section.
36(b) No food containers shall be made, formed, or filled as to be
37
misleading.
38(c) A container that does not allow the consumer to fully view
39its contents shall be considered to be filled as to be misleading if
40it contains nonfunctional slack fill. Slack fill is the difference
P6 1between the actual capacity of a container and the volume of
2product contained therein. Nonfunctional slack fill is the empty
3space in a package that is filled to substantially less than its
4capacity for reasons other than any one or more of the following:
5(1) Protection of the contents of the package.
6(2) The requirements of the machines used for enclosing the
7contents in the package.
8(3) Unavoidable product settling during shipping and handling.
9(4) The need for the package to perform a specific function,
10such as where packaging plays a role in the preparation or
11consumption of a food, if that function is inherent to the nature of
12the food and is clearly communicated to consumers.
13(5) The fact that the product consists of a food packaged in a
14reusable container where the container is part of the presentation
15of the food and has value that is both significant in proportion to
16the value of the product and independent of its function to hold
17the food, such as a gift product consisting of a food or foods
18combined with a container that is intended for further use after the
19food is consumed or durable commemorative or promotional
20packages.
21(6) Inability
to increase the level of fill or to further reduce the
22size of the package, such as where some minimum package size
23is necessary to accommodate required food labeling exclusive of
24any vignettes or other nonmandatory designs or label information,
25discourage pilfering, facilitate handling, or accommodate
26tamper-resistant devices.
27(d) Slack fill in a package shall not be used as grounds to allege
28a violation of this section based solely on its presence unless it is
29nonfunctional slack fill.
30(d)
end delete
31begin insert(end insertbegin inserte)end insert This section shall be interpreted consistent with the
32comments by the United States Food and Drug Administration on
33the regulations contained in Section 100.100 of Title 21 of the
34Code of Federal Regulations, interpreting Section 403(d) of the
35Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)),
36as those comments are reported on pages 64123 to 64137, inclusive,
37of Volume 58 of the Federal Register.
38(e)
end delete
39begin insert(end insertbegin insertf)end insert If the requirements of this section do not impose the same
40requirements
as are imposed by Section 403(d) of the Federal
P7 1Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)), or any
2regulation promulgated pursuant thereto, then this section is not
3operative to the extent that it is not identical to the federal
4requirements, and for this purpose those federal requirements are
5incorporated into this section and shall apply as if they were set
6forth in this section.
7(f)
end delete
8begin insert(end insertbegin insertg)end insert Any sealer may seize any container that is in violation of
9this section and the contents of the
container. By order of the
10superior court of the county within which a violation of this section
11occurs, the containers seized shall be condemned and destroyed
12or released upon any conditions that the court may impose to ensure
13against their use in violation of this chapter. The contents of any
14condemned container shall be returned to the owner thereof if the
15owner furnishes proper facilities for the return. A proceeding under
16this section is a limited civil case if the value of the property in
17controversy is less than or equal to the maximum amount in
18controversy for a limited civil case under Section 85 of the Code
19of Civil Procedure.
Section 110375 of the Health and Safety Code is
21amended to read:
(a) No container wherein commodities are packed
23shall have a false bottom, false sidewalls, false lid or covering, or
24be otherwise so constructed or filled, wholly or partially, as to
25facilitate the perpetration of deception or fraud.
26(b) No container shall be made, formed, or filled as to be
27misleading. A container that does not allow the consumer to fully
28view its contents shall be considered to be filled as to be misleading
29if it contains nonfunctional slack fill. Slack fill is the difference
30between the actual capacity of a container and the volume of
31product contained therein. Nonfunctional slack fill is the empty
32space in a package that is
filled to substantially less than its
33capacity for reasons other than any one or more of the following:
34(1) Protection of the contents of the package.
35(2) The requirements of machines used for enclosing the
36contents of the package.
37(3) Unavoidable product settling during shipping and handling.
38(4) The need to utilize a larger than required package or
39container to provide adequate space for the legible presentation of
40mandatory and necessary labeling information, such as those based
P8 1on the regulations adopted by the United States Food and Drug
2Administration or state or federal agencies under federal or state
3law, laws or regulations adopted by foreign governments, or
under
4an industrywide voluntary labeling program.
5(5) The fact that the product consists of a commodity that is
6packaged in a decorative or representational container where the
7container is part of the presentation of the product and has value
8that is both significant in proportion to the value of the product
9and independent of its function to hold the product, such as a gift
10combined with a container that is intended for further use after the
11product is consumed, or durable commemorative or promotional
12packages.
13(6) An inability to increase the level of fill or to further reduce
14the size of the package, such as where some minimum package
15size is necessary to accommodate required labeling, discourage
16pilfering, facilitate handling, or accommodate tamper-resistant
17devices.
18(7) The product container bears a reasonable relationship to the
19actual amount of product contained inside, and the dimensions of
20the actual product container, the product, or the amount of product
21therein is visible to the consumer at the point of sale, or where
22obvious secondary use packaging is involved.
23(8) The dimensions of the product or immediate product
24container are visible through the exterior packaging, or where the
25actual size of the product or immediate product container is clearly
26and conspicuously depicted on any side of the exterior packaging
27excluding the bottom, accompanied by a clear and conspicuous
28disclosure that the representation is the “actual size” of the product
29or the immediate product container.
30(9) The presence of any headspace within an immediate product
31container necessary to facilitate the mixing, adding, shaking, or
32dispensing of liquids or powders by consumers prior to use.
33(10) The exterior packaging contains a product delivery or
34dosing device if the device is visible, or a clear and conspicuous
35depiction of the device appears on the exterior packaging, or it is
36readily apparent from the conspicuous exterior disclosures or the
37nature and name of the product that a delivery or dosing device is
38contained in the package.
39(11) The exterior packaging or immediate product container is
40
a kit that consists of a system, or multiple components, designed
P9 1to produce a particular result that is not dependent upon the
2quantity of the contents, if the purpose of the kit is clearly and
3conspicuously disclosed on the exterior packaging.
4(12) The exterior packaging of the product is routinely displayed
5using tester units or demonstrations to consumers in retail stores,
6so that customers can see the actual, immediate container of the
7product being sold, or a depiction of the actual size of the container
8prior to purchase.
9(13) The exterior packaging consists of single or multiunit
10presentation boxes of holiday or gift packages if the purchaser can
11adequately determine the quantity and sizes of the immediate
12product container at the point of sale.
13(14) The exterior packaging is for a combination of one
14
purchased product, together with a free sample or gift, wherein
15the exterior packaging is necessarily larger than it would otherwise
16be due to the inclusion of the sample or gift, if the presence of both
17products and the quantity of each product are clearly and
18conspicuously disclosed on the exterior packaging.
19(c) Slack fill in a package shall not be used as grounds to allege
20a violation of this section based solely on its presence unless it is
21nonfunctional slack fill.
22(d) Any sealer may seize a container that facilitates the
23perpetration of deception or fraud and the contents of the container.
24By order of the superior court of the county within which a
25violation of this section occurs, the containers seized shall be
26condemned and destroyed or released upon any
condition as the
27court may impose to ensure against their use in violation of this
28chapter. The contents of any condemned container shall be returned
29to the owner if the owner furnishes proper facilities for the return.
O
94