BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
9
7
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SB 977 (Yee)
As Amended June 4, 2012
Hearing date: July 3, 2012
Health and Safety Code (URGENCY)
MK:mc
SHERMAN FOOD, DRUG, AND COSMETIC LAW:
NAIL POLISH
HISTORY
Source: Author
Prior Legislation: AB 237 (Galgiani) - held Assembly
Appropriations, 2011
SB 1712 (Migden) - failed Assembly Appropriations,
2008
AB 595 (Dymally) - failed Senate Health, 2007
SB 484 (Migden) - Chapter 729, Statutes of 2005
Support: Personal Care Products Council
Opposition: None known
KEY ISSUE
SHOULD THERE BE AN INCREASED FINE FOR A MISDEMEANOR VIOLATION OF
SPECIFIED SHERMAN FOOD, DRUG, AND COSMETIC LAW REGULATIONS BY A NAIL
POLISH MANUFACTURER?
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PURPOSE
The purpose of this bill is to increase the fine for a
misdemeanor violation of specified Sherman Food, Drug, and
Cosmetic Law regulations by a nail polish manufacturer.
Existing law requires the Department of Public Health (DPH),
under the Sherman Food, Drug, and Cosmetic Law, to regulate the
manufacture, sale, labeling, and advertising activities related
to food, drugs, devices, and cosmetics in conformity with the
federal Food, Drug, and Cosmetic Act. (Health and Safety Code
�� 109875 et. seq.)
Existing law provides that any cosmetic is misbranded if its
labeling is false or misleading in any particular. (Health and
Safety Code � 11730.)
Existing law provides that any cosmetic is misbranded if it is
in package form and it does not bear a label containing all of
the following information: the name and place of the business of
the manufacturer, packer or distributor; and, an accurate
statement of the quantity of the contents in terms of weight,
measure, or numerical count. (Health and Safety Code � 11740.)
Existing law provides that a cosmetic is misbranded if any word,
statement, or other information required pursuant to this part
to appear on the label or labeling is not prominently placed
upon the label or labeling with conspicuousness, as compared
with other words, statements, designs, or devices in the
labeling and in terms as to render it likely to be read and
understood by the ordinary individual under customary conditions
of purchase and use. (Health and Safety Code
� 111745.)
Existing law provides that any cosmetic is misbranded if its
container is so made, formed, or filled as to be misleading.
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(Health and Safety Code � 111750.)
Existing law provides that a cosmetic is misbranded if it is a
color additive, unless its packaging and labeling are in
conformity with the packaging and labeling requirements.
(Health and Safety Code � 111755.)
Existing law provides that a cosmetic is misbranded if its
packaging or labeling is in violation of specified poison
requirements. (Health and Safety Code � 111760.)
Existing law provides that it is unlawful for any person to
manufacture, or sell any cosmetic that is misbranded. (Health
and Safety Code � 111765.)
Existing law provides that it is unlawful for any person to
misbrand any cosmetic. (Health and Safety Code � 111770.)
Existing law provides that it is unlawful for any person to
receive in commerce any cosmetic that is misbranded, or to
deliver or proffer for delivery any cosmetic. (Health and
Safety Code
� 111775.)
Existing law provides that it is unlawful for any person to
alter, mutilate, destroy obliterate or remove any part of the
labeling of any cosmetic if the act results in the cosmetic
being misbranded. (Health and Safety Code � 111780.)
Existing law defines a manufacturer as any person whose name
appears on the label of a cosmetic product. (Health and Safety
Code � 111791.5(e).)
Existing law provides that any person who violates any provision
in the Sherman Food, Drug, and Cosmetic Law is guilty of a
misdemeanor punishable by up to one year in the county jail and
or a fine of up to $1,000 (approximately $3,800 with penalty
assessments). If the person has a prior conviction or the
violation was with the intent to defraud or mislead the person
is guilty of a wobbler with a fine of up to $10,000
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(approximately $38,000 with penalty assessments). (Health and
Safety Code � 111825.)
This bill would provide that a manufacturer of nail polish who
violates the provisions relating to misbranding if convicted
shall be subject to a fine of not more than $15,000
(approximately $57,000 with penalty assessments).
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
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On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
According to the author:
The California Department of Toxic Substances Control
(DTSC) recently reported that the ingredients listed on
the labels of some nail polishes were either inaccurate
or made outright false claims. Despite the product
labels claiming to be free of one or more ingredients,
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some of the products the DTSC tested actually contained
some or all of the chemicals. (news stories and report
links below)
Existing state and Federal requirements require
disclosure of ingredients for all products. There are
no excuses for manufacturers to mislabel or
misrepresent the substances in their products.
Mislabeling is a bad business practice, clearly
uncompetitive, and violates the public trust. The
intent of this bill is to create a creditable deterrent
against engaging in mislabeling to reassure customers
and workers that the products they use daily are
labeled correctly. We want to send a clear message and
SB 977 does just that.
2. Existing Penalties for Violations
The Sherman Food, Drug, and Cosmetic Law regulates the
manufacturing, labeling, sale, etcetera, of food, drugs,
devices and cosmetics. A violation of any provision of the
act is a misdemeanor punishable by up to one year in the
county jail and/or a fine of not more than $1,000
(approximately $3,800 with penalty assessments).<1> If the
violation occurs after a prior violation, it was committed
with the intent to defraud or mislead; or, if it was a
violation of provisions prohibiting the adulterating food or
drugs which was intentional or intended to cause injury, the
violation is a wobbler with a fine of not more than $10,000
(approximately $38,000 with penalty assessments).
3. Increased Penalty for Nail Polish Violations
This bill would increase the penalty for violations of
regulations relating to labeling by a manufacturer of nail
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<1> Until the budget year 2002-2003, there was 170% in penalty
assessments applied to every fine, the current
penalty assessments are approximately 280%. (See Penal Code ��
1464, 1465.7, and 1465.8; Government Code
�� 70372, 7600.5, 76000 et seq, and 76104.6.)
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polish. As currently drafted, this bill attempts to create
a criminal penalty but merely lists a fine. It is staff's
understanding that the author intends to create a
misdemeanor with that fine, and the bill should be amended
to clearly state that.
This bill would increase the fine for violations of labeling
by the manufacturer of nail polish to $15,000, which with
penalty assessments is approximately $57,000. Since, as
noted above, there is another subsection that creates a
wobbler with a $10,000 fine for violations that had the
intent to defraud or mislead. This new penalty for
manufacturers of nail polish would be violations without
that intent. Is the new higher fine for manufacturers of
nail polish who do not have the intent to mislead or defraud
appropriate? Is it appropriate to single out the
manufacturers of nail polish for a higher fine; what
differentiates them from the manufacturers of other food,
drugs, devices, or cosmetics which will be subject to the
existing fine?
4. Senate Health
This bill passed Senate Health Committee on June 14 on a
vote of 7-0.
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