BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 465| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 465 Author: Correa (D) Amended: 4/23/13 Vote: 21 SENATE BUSINESS, PROF. & ECON. DEV. COMM. : 9-0, 5/6/13 AYES: Price, Emmerson, Block, Corbett, Galgiani, Hernandez, Hill, Padilla, Wyland NO VOTE RECORDED: Yee SUBJECT : Packaging and labeling: containers: slack fill SOURCE : Grocery Manufacturers Association Personal Care Products Council DIGEST : This bill specifies that the presence of non-functional slack fill in a package is required for a violation of any of the container-related provisions of the Fair Packaging and Labeling Act or the Sherman Food, Drug, and Cosmetic Law; specifies that non-functional 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 specified reasons; specifies that where required, the actual size of the product may be depicted on "any side" of the exterior packaging; and declares that the changes made by this bill are declaratory of existing law. ANALYSIS : Existing law: CONTINUED SB 465 Page 2 1.Establishes the Fair Packaging and Labeling Act (Act) and provides for enforcement of the Act by the Department of Food and Agriculture; and declares that the Act is designed to protect purchasers of any commodity within its provisions against deception or misrepresentation, and that packages and their labels should enable consumers to obtain accurate information as to the quantity of the contents and should facilitate value comparisons. 2.Prohibits commodities (i.e., non-food commodities) from being packaged for distribution that is not in conformity with prescribed packaging and labeling requirements, except as provided. 3.Establishes certain requirements for containers used for distribution or sale of commodities including: A. Prohibiting a container in which 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. B. Prohibiting a container from being made, formed, or filled as to be misleading; and providing that a container that does not allow a consumer to fully view its contents violates this provision if it contains non-functional slack fill. C. Providing that "slack fill" is the difference between the actual capacity of a container and the volume of product contained therein. D. Providing that "non-functional slack fill" is the empty space in a package that is filled to less than its capacity for reasons other than those specified. 1.Prohibits food containers subject to the Federal Food, Drug, and Cosmetic Act, from being made, formed, or filled as to be misleading, as specified. 2.Establishes, the Sherman Food, Drug, and Cosmetic Law, and provides for regulation under that law by the Department of Public Health of the packaging and labeling of foods, drugs, CONTINUED SB 465 Page 3 devices, and cosmetics. 3.Authorizes any sealer to seize a container in violation of these provisions of law, and provides that by order of the Superior Court the containers seized shall be condemned and destroyed or released upon conditions imposed by the court against their use in violation of the Act. This bill: 1.Amends the packaging requirements pertaining to non-food commodities and food containers in the Act, and in the Sherman Food, Drug and Cosmetic Law: A. Specifies that the presence of non-functional slack fill in a package is required for a violation of any of the container-related provisions. B. Specifies that non-functional 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. C. Specifies that where the actual size of the product is clearly and conspicuously depicted on the exterior packaging, as specified, it may be depicted on "any side" of the exterior packaging. 1.Declares that the changes made by this bill do not constitute a change in, but are declaratory of existing law. Background Both federal and California laws have addressed the issue of misleading packaging for consumer products, and specifically, "slack fill" - which is the impermissible empty space between the actual container capacity and the volume of the product contained therein. The federal Food, Drug and Cosmetic Act in 1938 (21 U.S.C. 301 et seq.) explicitly prohibited misleading packaging for Food and CONTINUED SB 465 Page 4 Drug Administration (FDA) regulated products. In 1966, the Fair Packaging and Labeling Act was enacted and referred to the concept of nonfunctional slack fill. The law also had a provision authorizing the FDA to adopt regulations to "prevent the nonfunctional slack fill of packages" containing food, drugs, devices, or cosmetics. In 1994, the FDA promulgated regulations establishing general principles on non-functional slack fill: (a) 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 less than its capacity for reasons other than specified. According to the regulation, if a container does allow a consumer to view the full contents of the package (such as with a transparent side-wall) it is not misleading. However, if a container does not allow a consumer to view the contents and it contains non-functional slack fill, it is deemed misleading, unless it meets a specified exemption. The regulation goes on to list six exemptions, or safe harbors, to the above prohibition against misleading packaging; including, for example, exempting use of non-functional slack fill when necessary to protect the contents of the package, the requirements of machines used for packaging, or the settling of the product during shipping or handling. California law . Similar to federal law, California's Fair Packaging and Labeling Act governs misleading packaging of consumer products. Specifically, state law prohibits a container from containing a false bottom or side or lid, or to be filled in such a way as to promote deception or fraud. In 1997, AB 1394 (Figueroa, Chapter 711) was enacted to further prohibit a container from being made or filled as to be misleading, and provide that a container that does not allow the contents to be viewed shall be considered misleading if it contains non-functional slack fill. The law specifies that slack fill is the empty space in a package that is filled to CONTINUED SB 465 Page 5 less than its capacity and describes 15 exceptions to the non-functional slack fill provisions. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 5/8/13) Grocery Manufacturers Association (co-source) Personal Care Products Council (co-source) Advanced Medical Technology Association American Cleaning Institute BAYBIO BIOCOM California Chamber of Commerce California Farm Bureau Federation California Healthcare Institute California Manufacturers and Technology Association California Retailers Association Consumer Healthcare Products Association Consumer Specialty Products Association Pharmaceutical Researchers and Manufacturers of America OPPOSITION : (Verified 5/8/13) California District Attorneys Association ARGUMENTS IN SUPPORT : According to the bill's sponsors, the Grocery Manufacturers Association and the Personal Care Products Council, for years, all parties abided by the slack fill enforcement guidelines, now, 16 years after the codification of the slack fill exemptions, companies suddenly face renewed (and inconsistent) enforcement actions in California for their product packaging, even though such packaging meets one of the 15 enumerated statutory exemptions. The sponsors state that the reason for the current enforcement efforts is, ostensibly, that packaging with non-functional slack fill is misleading, even if it meets an exemption, and thus violates the statute. In other words, the sponsors argue, many have resurrected an older rationale that packaging with nonfunctional slack fill is per se illegal, whether the packaging meets one of the enumerated exemptions or not. The sponsors believe that this is a clear misinterpretation (or CONTINUED SB 465 Page 6 perhaps reinterpretation) of the plain language of the statute, and completely ignores the purpose of the exemptions placed into law by the Legislature in 1997. The sponsors indicate that slack fill violations can result in harsh monetary penalties and can force manufacturers to spend millions of dollars modifying packaging for products sold in California and around the world. According to the sponsors, this bill fixes this inequitable situation by clarifying the application of the slack fill exemptions already codified in law. ARGUMENTS IN OPPOSITION : The California District Attorneys Association argues that this bill will seriously weaken existing law that prohibits the use of unnecessarily large containers to mislead consumers into believing that they are receiving more product than is actually the case. MW:ej 5/8/13 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED