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 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 465 Author: Correa (D) Amended: 9/4/13 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 SENATE FLOOR : 37-0, 5/29/13 AYES: Anderson, Beall, Berryhill, Block, Calderon, Cannella, Corbett, Correa, De León, DeSaulnier, Emmerson, Evans, Fuller, Gaines, Galgiani, Hancock, Hernandez, Hill, Huff, Jackson, Knight, Lara, Leno, Lieu, Liu, Monning, Nielsen, Padilla, Pavley, Price, Roth, Steinberg, Torres, Walters, Wolk, Wyland, Yee NO VOTE RECORDED: Hueso, Wright, Vacancy ASSEMBLY FLOOR : 76-0, 9/9/13 - See last page for vote SUBJECT : Packaging and labeling: containers: slack fill SOURCE : Grocery Manufacturers Association Personal Care Products Council DIGEST : This bill amends packaging requirements pertaining to non-food-commodities and food containers in the Fair Packaging and Labeling Act (FPLA), the Federal Food, Drug, and Cosmetics Act (FDC Act), and in the Sherman Food, Drug, and Cosmetic Law CONTINUED SB 465 Page 2 (Sherman Law). Assembly Amendments redefine "nonfunctional slack fill;" add conforming language to provisions related to slack fill and food product containers; and make technical changes. ANALYSIS : Existing law: 1.Establishes certain requirements for containers used for distribution or sale of commodities under the FPLA, the FDC Act and the Sherman Law, 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 commodities container or a food container subject to the FDC Act 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.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 FPLA. This bill amends the packaging requirements pertaining to non-food commodities and food containers in the FPLA, the FDC Act, and in the Sherman Law by: CONTINUED SB 465 Page 3 1.Redefining "non-functional slack fill" as the empty space in a package that is filled to substantially less than its capacity for reasons other than any one or more of 15 existing exemptions, as specified. 2.Specifying 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, excluding the bottom. 3.Providing that slack fill in a package shall not be used as grounds to allege violation of specified provisions based on its presence unless it is nonfunctional slack fill. 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 FDC Act in 1938 (21 U.S.C. 301 et seq.) explicitly prohibited misleading packaging for Food and Drug Administration (FDA) regulated products. In 1966, the FPLA 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 CONTINUED SB 465 Page 4 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 FPLA 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 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) (unable to reverify at time of writing) 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 CONTINUED SB 465 Page 5 Consumer Specialty Products Association Pharmaceutical Researchers and Manufacturers of America OPPOSITION : (Verified 5/8/13) (unable to reverify at time of writing) California District Attorneys Association California Public Interest Research Group County of Alameda District Attorney's Office County of Contra Costa District Attorney's Office County of Fresno District Attorney's Office County of Monterey District Attorney's Office County of Riverside District Attorney's Office County of San Diego District Attorney's Office County of San Mateo District Attorney's Office County of Santa Clara District Attorney's Office County of Solano District Attorney's Office 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 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. CONTINUED SB 465 Page 6 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. ASSEMBLY FLOOR : 76-0, 9/9/13 AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom, Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley, Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Grove, Hagman, Harkey, Roger Hernández, Holden, Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein, Mansoor, Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting, Wagner, Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Donnelly, Hall, Vacancy, Vacancy MW:ej 9/9/13 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED