BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                 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  
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          (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:


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          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  

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          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

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          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.

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           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

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