BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 465
                                                                  Page  1

          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