BILL ANALYSIS Ó
SB 465
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Date of Hearing: July 3, 2013
ASSEMBLY COMMITTEE ON AGRICULTURE
Susan Talamantes Eggman, Chair
SB 465 (Correa) - As Amended: April 23, 2013
SENATE VOTE : 37-0
SUBJECT : Packaging and labeling: containers: slack fill.
SUMMARY : 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 (FPLA) or the Sherman Food, Drug, and
Cosmetic Law (SFDCL). Specifically this bill:
1)Amends the packaging requirements pertaining to non-food
commodities and food containers in FPLA, and in SFDCL.
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; and,
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.
2)Declares that the changes made by this bill do not constitute
a change in existing law, but are declaratory of existing law.
EXISTING LAW :
1)Establishes FPLA and provides for enforcement of FPLA by the
Department of Food and Agriculture (CDFA).
2)Declares that FPLA 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
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quantity of the contents and should facilitate value
comparisons.
3)Prohibits commodities from being packaged for distribution
that is not in conformity with prescribed packaging and
labeling requirements, as specified.
4)Establishes certain requirements for containers used for
distribution or sale of commodities including:
a) Prohibits 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) Prohibits a container from being made, formed, or filled
as to be misleading. Provides 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) Defines "slack fill" as the difference between the
actual capacity of a container and the volume of product
contained therein.
d) Defines "non-functional slack fill" as the empty space
in a package that is filled to less than its capacity for
reasons other than the following 15 exceptions:
i) Protection of the contents of the package;
ii) The requirements of machines used for enclosing the
package;
iii) Unavoidable product settling during shipping and
handling;
iv) The need to use a larger package or for the legible
presentation of mandatory and necessary labeling
information;
v) Packaging in a decorative or representational
container where the container is part of the presentation
of the product and has value independent of its function
to hold the product, as specified;
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vi) Where minimum package size is necessary to
accommodate required labeling, discourage pilfering,
facilitate handling, or accommodate tamper-resistant
devices;
vii) The container bears a reasonable relationship to the
actual amount of product inside, and the dimensions of
the container, the product, or the amount of product
inside is visible to the consumer;
viii) The dimensions of the product or product container
can be seen through the exterior packaging, or where the
actual size of the product or product container is shown
on the exterior packaging, accompanied by a clear and
conspicuous disclosure that the representation is the
"actual size" of the product or the product container;
ix) The presence of any headspace within a product
container necessary to facilitate mixing, adding,
shaking, or dispensing by the consumer prior to use;
x) The exterior packaging contains a product delivery
or dosing device, as shown or described, as specified;
xi) The packaging or product container is a kit that
consists of multiple components, as specified, if the
purpose of the kit is clearly and conspicuously disclosed
on the exterior packaging;
xii) The packaging of the product is routinely displayed
using tester units or
demonstrations to consumers in retail stores, so that
customers can see the container of the product being sold
or the actual size of the product, prior to purchase;
xiii) The packaging consists of one or more presentation
boxes of holiday or gift packages if the purchaser can
adequately determine the quantity and sizes of the
product container when sold;
xiv) The packaging is for the purchased product, together
with a free sample or gift, as specified, if both
products and their quantity are clearly and conspicuously
disclosed on the exterior packaging; and,
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xv) The packaging or product container is for computer
hardware or software, and if the function of the hardware
or software is clearly and conspicuously disclosed on the
exterior packaging.
5)Prohibits food containers subject to the Federal Food, Drug,
and Cosmetic Act, from being made, formed, or filled as to be
misleading, as specified.
a) Provides that a container that does not allow a consumer
to fully view its contents violates this provision if it
contains non-functional slack fill; and,
b) Provides that these state provisions regarding food
containers are operative only to the extent they are
identical to specified federal requirements.
6)Establishes SFDCL and provides for regulation under that law
by the State Department of Public Health of the packaging and
labeling of foods, drugs, devices, and cosmetics.
a) Establishes requirements for containers containing these
commodities that are similar to the requirements for
containers under FPLA.
7)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 FPLA.
FISCAL EFFECT : This bill has been keyed non-fiscal by
Legislative Counsel.
COMMENTS : Both federal and California laws address the issue of
misleading packaging for consumer products and the issues of
slack fill. Slack fill is the impermissible empty space between
the actual container capacity and the volume of the product in
the container.
According to current FDA 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. 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
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meets a specified exemption. The regulations list six
exemptions, or safe harbors, to the prohibition against
misleading packaging. Some of the exemptions are: 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.
Similar to federal law, California's FPLA governs misleading
packaging of consumer products. 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. California law
also prohibits a container from being made or filled as to be
misleading, and provides 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 provides 15
exceptions to the non-functional slack fill provisions.
According to the author, fifteen years after the slack fill
exemptions became law, companies face renewed and inconsistent
enforcement actions in California for their product packaging,
even though such packaging meets one of the law's exemptions.
The author states the purported reason for the current
enforcement efforts is that, despite meeting an exemption, the
packaging is nonetheless misleading and thus violates the
statute. Supporters states that this is a clear misreading of
the statue, and ignores the purpose of the exemptions placed
into law by the California Legislature. Slack fill violations
can result in monetary penalties and can cause manufacturers to
spend millions modifying packaging for products sold in
California. Supporters state that this bill fixes this
inequitable situation by clarifying the application of the slack
fill exemptions already codified in law.
Opposition argues that the bill would 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. The opponents contend the
bill would entirely eliminate the first two methods of violating
current slack fill law and would add an additional burden in
establishing the existence of nonfunctional slack fill.
Opponents further state this bill "would weaken important
consumer protection and impose significant new burdens on
appropriate law enforcement actions, leading to the loopholes
and confusion that the FDA cited in rejecting the term
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[substantially]. Pending and future law enforcement cases,
brought by the California Attorney General and district
attorneys to protect the public from misleading packaging, would
also be needlessly undermined by the inaccurate statement that
these amendments are declaratory of existing law. Most
importantly, SB 465 in its current form would harm consumers,
who will be misled into believing that they are receiving more
product than they are, and would harm honest businesses that do
not use deceptive packaging and want a level playing field."
REGISTERED SUPPORT / OPPOSITION :
Support
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
Grocery Manufacturers Association
Personal Care Products Council
Pharmaceutical Researchers and Manufacturers of America
Opposition
California Agricultural Commissioners and Sealers Association
California District Attorneys Association
California Public Interest Research Group (CALPIRG)
Fresno County District Attorney's Office
Los Angeles County District Attorney's Office
Monterey County District Attorney's Office
Napa County District Attorney's Office
Placer County District Attorney's Office
Sacramento County District Attorney's Office
San Diego County District Attorney's Office
San Francisco City and County District Attorney's Office
San Mateo County District Attorney's Office
Santa Clara County District Attorney's Office
Shasta County District Attorney's Office
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Solano County District Attorney's Office
Ventura County District Attorney's Office
Yolo County District Attorney's Office
Analysis Prepared by : Victor Francovich / AGRI. / (916)
319-2084