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California Business and Professions Code Section 12606.2

Legal Research Home > California Laws > Business and Professions Code > California Business and Professions Code Section 12606.2

12606.2.  (a) This section applies to food containers subject to
Section 403 (d) of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. Sec. 343 (d)), and Section 100.100 of Title 21 of the Code of
Federal Regulations. Section 12606 does not apply to food containers
subject to this section.
   (b) No food containers shall be made, formed, or filled as to be
misleading.
   (c) 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 the following:
   (1) Protection of the contents of the package.
   (2) The requirements of the machines used for enclosing the
contents in the package.
   (3) Unavoidable product settling during shipping and handling.
   (4) The need for the package to perform a specific function, such
as where packaging plays a role in the preparation or consumption of
a food, if that function is inherent to the nature of the food and is
clearly communicated to consumers.
   (5) The fact that the product consists of a food packaged in a
reusable container where the container is part of the presentation of
the food and has value that is both significant in proportion to the
value of the product and independent of its function to hold the
food, such as a gift product consisting of a food or foods combined
with a container that is intended for further use after the food is
consumed or durable commemorative or promotional packages.
   (6) Inability to increase the level of fill or to further reduce
the size of the package, such as where some minimum package size is
necessary to accommodate required food labeling exclusive of any
vignettes or other nonmandatory designs or label information,
discourage pilfering, facilitate handling, or accommodate
tamper-resistant devices.
   (d) This section shall be interpreted consistent with the comments
by the United States Food and Drug Administration on the regulations
contained in Section 100.100 of Title 21 of the Code of Federal
Regulations, interpreting Section 403(d) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Sec. 343(d)), as those comments are
reported on pages 64123 to 64137, inclusive, of Volume 58 of the
Federal Register.
   (e) If the requirements of this section do not impose the same
requirements as are imposed by Section 403(d) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)), or any regulation
promulgated pursuant thereto, then this section is not operative to
the extent that it is not identical to the federal requirements, and
for this purpose those federal requirements are incorporated into
this section and shall apply as if they were set forth in this
section.
   (f) Any sealer may seize any container that is in violation of
this section and the contents of the container. By order of the
superior court of the county within which a violation of this section
occurs, the containers seized shall be condemned and destroyed or
released upon any conditions that the court may impose to ensure
against their use in violation of this chapter. The contents of any
condemned container shall be returned to the owner thereof if the
owner furnishes proper facilities for the return. A proceeding under
this section is a limited civil case if the value of the property in
controversy is less than or equal to the maximum amount in
controversy for a limited civil case under Section 85 of the Code of
Civil Procedure.

Last modified: February 22, 2013