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 SB 465 Page 2 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; SB 465 Page 3 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, SB 465 Page 4 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 SB 465 Page 5 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 SB 465 Page 6 [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 SB 465 Page 7 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