BILL NUMBER: SB 465	CHAPTERED
	BILL TEXT

	CHAPTER  429
	FILED WITH SECRETARY OF STATE  SEPTEMBER 30, 2013
	APPROVED BY GOVERNOR  SEPTEMBER 30, 2013
	PASSED THE SENATE  SEPTEMBER 10, 2013
	PASSED THE ASSEMBLY  SEPTEMBER 9, 2013
	AMENDED IN ASSEMBLY  SEPTEMBER 4, 2013
	AMENDED IN ASSEMBLY  AUGUST 19, 2013
	AMENDED IN ASSEMBLY  AUGUST 7, 2013
	AMENDED IN SENATE  APRIL 23, 2013
	AMENDED IN SENATE  APRIL 16, 2013

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, Correa. Packaging and labeling: containers: slack fill.
    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 commodities container, or 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.
   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 the requirements for containers under
the Fair Packaging and Labeling Act.
   This bill would instead define nonfunctional slack fill for all of
these provisions 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 applicable reasons. The bill would provide that slack fill in
a package shall not be used as grounds to allege a violation of the
applicable provisions based solely on its presence in any of these
types of packages unless it is nonfunctional slack fill, except that,
for food containers, this would be operative only to the extent it
is identical to the federal requirement.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 12606 of the Business and Professions Code is
amended to read:
   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.
   (b) No container shall be made, formed, or filled as to be
misleading. 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 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 substantially less than its
capacity for reasons other than any one or more of 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 United States 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 any side of the exterior packaging
excluding the bottom, 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.
   (c) Slack fill in a package shall not be used as grounds to allege
a violation of this section based solely on its presence unless it
is nonfunctional slack fill.
   (d) 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.
  SEC. 2.  Section 12606.2 of the Business and Professions Code is
amended to read:
   12606.2.  (a) This section applies to food containers subject to
Section 403(d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
Sec. 343(d)), and Section 100.100 of Title 21 of the Code of Federal
Regulations. Section 12606 does not apply to food containers subject
to this section.
   (b) No food containers shall be made, formed, or filled as to be
misleading.
   (c) 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 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 substantially less than its capacity for
reasons other than any one or more of the following:
   (1) Protection of the contents of the package.
   (2) The requirements of the machines used for enclosing the
contents in the package.
   (3) Unavoidable product settling during shipping and handling.
   (4) The need for the package to perform a specific function, such
as where packaging plays a role in the preparation or consumption of
a food, if that function is inherent to the nature of the food and is
clearly communicated to consumers.
   (5) The fact that the product consists of a food packaged in a
reusable container where the container is part of the presentation of
the food and has value that is both significant in proportion to the
value of the product and independent of its function to hold the
food, such as a gift product consisting of a food or foods combined
with a container that is intended for further use after the food is
consumed or durable commemorative or promotional packages.
   (6) 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 food labeling exclusive of any
vignettes or other nonmandatory designs or label information,
discourage pilfering, facilitate handling, or accommodate
tamper-resistant devices.
   (d) Slack fill in a package shall not be used as grounds to allege
a violation of this section based solely on its presence unless it
is nonfunctional slack fill.
   (e) This section shall be interpreted consistent with the comments
by the United States Food and Drug Administration on the regulations
contained in Section 100.100 of Title 21 of the Code of Federal
Regulations, interpreting Section 403(d) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Sec. 343(d)), as those comments are
reported on pages 64123 to 64137, inclusive, of Volume 58 of the
Federal Register.
   (f) If the requirements of this section do not impose the same
requirements as are imposed by Section 403(d) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)), or any regulation
promulgated pursuant thereto, then this section is not operative to
the extent that it is not identical to the federal requirements, and
for this purpose those federal requirements are incorporated into
this section and shall apply as if they were set forth in this
section.
   (g) Any sealer may seize any container that is in violation of
this section 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 any conditions that the court may impose to ensure
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.
  SEC. 3.  Section 110375 of the Health and Safety Code is amended to
read:
   110375.  (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.
   (b)  No container shall be made, formed, or filled as to be
misleading. 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 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 substantially less than its
capacity for reasons other than any one or more of 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 United States 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 any side of the exterior packaging
excluding the bottom, 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 of the
container 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.
   (c) Slack fill in a package shall not be used as grounds to allege
a violation of this section based solely on its presence unless it
is nonfunctional slack fill.
   (d) 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 any condition as the court
may impose to ensure against their use in violation of this chapter.
The contents of any condemned container shall be returned to the
owner if the owner furnishes proper facilities for the return.