BUSINESS AND PROFESSIONS CODE
SECTION 12601-12615.5
12601. This chapter is designed to protect purchasers of any
commodity within its provisions against deception or
misrepresentation. Packages and their labels should enable consumers
to obtain accurate information as to the quantity of the contents and
should facilitate value comparisons.
It is hereby declared to be the policy of the Legislature to
assist in attaining these goals.
12602. (a) It is unlawful for any person engaged in the packaging
or labeling of any commodity for distribution or sale, or for any
person (other than a common carrier for hire, a contract carrier for
hire, or a freight forwarder for hire) engaged in the distribution of
any packaged or labeled commodity, to distribute or to cause to be
distributed any such commodity if the commodity is contained in a
package, or if there is affixed to that commodity a label, which does
not conform to the provisions of this chapter or the regulations
adopted under the authority of this chapter or the provisions of, or
the regulations adopted under, Chapter 6.6 (commencing with Section
12665), Chapter 14 (commencing with Section 13400), or Chapter 15
(commencing with Section 13700).
(b) The prohibition contained in subdivision (a) does not apply to
persons engaged in business as wholesale or retail distributors of
commodities, except to the extent that those persons (1) are engaged
in the packaging or labeling of such commodities, (2) prescribe or
specify by any means the manner in which such commodities are
packaged or labeled, or (3) have knowledge of the violation of any
provision of this chapter or of Chapter 6.6 (commencing with Section
12665), Chapter 14 (commencing with Section 13400), or Chapter 15
(commencing with Section 13700).
12603. No person subject to the prohibition in Section 12602 shall
distribute any packaged commodity unless it is in conformity with
regulations that shall be established by the director that shall
provide:
(a) The commodity shall bear a label specifying the identity of
the commodity and the name and place of business of the manufacturer,
packer, or distributor.
(b) The net quantity of contents (in terms of weight or mass,
measure, numerical count, or time) shall be separately and accurately
stated in a uniform location upon the principal display panel of
that label, using the most appropriate units of both the customary
inch-pound system of measure, and except as provided in subdivisions
(c) and (d), the SI (Systeme International d'Unites) metric system.
(c) On a random package labeled in terms of pounds and decimal
fractions of the pound, the statement may be carried out to not more
than three decimal places and is not required to, but may include a
statement in terms of the SI metric system carried out to not more
than three decimal places.
(d) The requirements of subdivision (b) concerning labeling using
the metric system do not apply to nonconsumer packages, foods that
are packaged at the retail store level, or to the sale or
distribution of products whose labels have been printed prior to
February 14, 1994.
(e) This section shall become operative on February 14, 1994.
12605. No person subject to the prohibition contained in Section
12602 shall distribute or cause to be distributed in commerce any
packaged commodity if any qualifying words or phrases appear in
conjunction with the separate statement of the net quantity of
contents required by Section 12603(b), but nothing in this chapter
shall prohibit supplemental statements, at other places on the
package describing in nondeceptive terms the net quantity of
contents: provided, that such supplemental statements of net quantity
of contents shall not include any term qualifying a unit of weight,
measure, or count that tends to exaggerate the amount of the
commodity contained in the package.
In no case shall any declaration of quantity be qualified by the
addition of the words "minimum," or "when packed," or words of
similar import; nor shall any unit of weight, measure or count be
qualified by any term (such as jumbo, giant, full, or the like) that
tends to exaggerate the amount of the commodity in the package.
12606. (a) No container wherein commodities are packed shall have a
false bottom, false sidewalls, false lid or covering, or be
otherwise so constructed or filled, wholly or partially, as to
facilitate the perpetration of deception or fraud.
(b) No container shall be made, formed, or filled as to be
misleading. 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 machines used for enclosing the contents
of the package.
(3) Unavoidable product settling during shipping and handling.
(4) The need to utilize a larger than required package or
container to provide adequate space for the legible presentation of
mandatory and necessary labeling information, such as those based on
the regulations adopted by the Food and Drug Administration or state
or federal agencies under federal or state law, laws or regulations
adopted by foreign governments, or under an industrywide voluntary
labeling program.
(5) The fact that the product consists of a commodity that is
packaged in a decorative or representational container where the
container is part of the presentation of the product and has value
that is both significant in proportion to the value of the product
and independent of its function to hold the product, such as a gift
combined with a container that is intended for further use after the
product is consumed, or durable commemorative or promotional
packages.
(6) An 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 labeling, discourage
pilfering, facilitate handling, or accommodate tamper-resistant
devices.
(7) The product container bears a reasonable relationship to the
actual amount of product contained inside, and the dimensions of the
actual product container, the product, or the amount of product
therein is visible to the consumer at the point of sale, or where
obvious secondary use packaging is involved.
(8) The dimensions of the product or immediate product container
are visible through the exterior packaging, or where the actual size
of the product or immediate product container is clearly and
conspicuously depicted on the exterior packaging, accompanied by a
clear and conspicuous disclosure that the representation is the
"actual size" of the product or the immediate product container.
(9) The presence of any headspace within an immediate product
container necessary to facilitate the mixing, adding, shaking, or
dispensing of liquids or powders by consumers prior to use.
(10) The exterior packaging contains a product delivery or dosing
device if the device is visible, or a clear and conspicuous depiction
of the device appears on the exterior packaging, or it is readily
apparent from the conspicuous exterior disclosures or the nature and
name of the product that a delivery or dosing device is contained in
the package.
(11) The exterior packaging or immediate product container is a
kit that consists of a system, or multiple components, designed to
produce a particular result that is not dependent upon the quantity
of the contents, if the purpose of the kit is clearly and
conspicuously disclosed on the exterior packaging.
(12) The exterior packaging of the product is routinely displayed
using tester units or demonstrations to consumers in retail stores,
so that customers can see the actual, immediate container of the
product being sold, or a depiction of the actual size thereof prior
to purchase.
(13) The exterior packaging consists of single or multiunit
presentation boxes of holiday or gift packages if the purchaser can
adequately determine the quantity and sizes of the immediate product
container at the point of sale.
(14) The exterior packaging is for a combination of one purchased
product, together with a free sample or gift, wherein the exterior
packaging is necessarily larger than it would otherwise be due to the
inclusion of the sample or gift, if the presence of both products
and the quantity of each product are clearly and conspicuously
disclosed on the exterior packaging.
(15) The exterior packaging or immediate product container
encloses computer hardware or software designed to serve a particular
computer function, if the particular computer function to be
performed by the computer hardware or software is clearly and
conspicuously disclosed on the exterior packaging.
(c) Any sealer may seize a container that facilitates the
perpetration of deception or fraud 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 conditions the court may
impose to insure 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.
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.
12607. Whenever a packaged commodity is offered for sale, exposed
for sale or sold without a statement of net quantity appearing
thereon as required by this chapter, the sealer shall in writing
order the commodity off sale and require that a correct statement of
net quantity be placed on the commodity before the same may be
released by the sealer.
12609. The director shall adopt necessary regulations to carry out
the purpose of this division and for the testing of packages to
verify the net quantity statements. In adopting these regulations,
the director shall adopt by reference the packaging and labeling
requirements recommended by the National Conference on Weights and
Measures and published in the current edition of the National
Institute of Standards and Technology Handbook 130, Uniform Packaging
and Labeling Regulation, except insofar as those requirements are
specifically modified, amended, or rejected by regulation by the
director. The regulations shall include exemptions from full
compliance with this chapter for good and sufficient reasons. Any
exemptions affecting consumer commodities shall be in conformance
with exemptions permitted by federal regulations. Any regulation, or
amendment thereof, shall be adopted by the director in conformity
with Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code.
This section shall become operative on February 14, 1994.
12610. The director may promulgate regulations similar to those
promulgated by the Secretary of Health, Education, and Welfare or the
Federal Trade Commission pursuant to the Fair Packaging and Labeling
Act (P.L. 89-755; 80 Stat. 1296; 15U.S.C. 1451-1461) effective to--
1. Establish and define standards for characterization of the size
of a package enclosing any commodity, which may be used to
supplement the label statement of net quantity of contents of
packages containing such commodity, but this paragraph shall not be
construed as authorizing any limitation on the size, shape, weight,
dimensions, or number of packages which may be used to enclose any
commodity;
2. Require that the label on each package of a commodity (other
than one which is a food within the meaning of Section 201(f) of the
Federal Food, Drug, and Cosmetic Act) bear the common or usual name
of such consumer commodity, if any.
12611. It is unlawful to pack, ship, or sell any commodity in a
container which does not conform to all the specifications of this
chapter; or which is not conspicuously marked, branded, or otherwise
labeled as required by this chapter; or on which any word, statement
or other information required by this chapter is not prominently
placed, in such terms and with such conspicuousness, as compared with
other words, statements, designs or devices on the label or
container, as to render it likely to be read and understood by
ordinary persons under customary conditions of purchase and use.
12612. The sale of any commodity packaged in a container, wherein
both the container and the contents thereof comply with any act of
Congress or rules or regulations promulgated thereunder, appertaining
to weight, measure or count, does not violate the provisions of this
chapter; nor does the sale of malt beverages in containers complying
with a rule, regulation or an approval of the United States Treasury
Department, Internal Revenue Service or Bureau of Alcohol, Tobacco
and Firearms, or of the State Department of Public Health and
pertaining to weight, measure or count constitute a violation of the
provisions of this chapter.
12613. If any provision of this chapter is less stringent or
requires information different from any requirement of Section 4 of
the act of Congress entitled "Fair Packaging and Labeling Act" (P.L.
89-755; 80 Stat. 1296; 15 U.S.C. 1451-1461) or of any regulation
promulgated pursuant to that act, the provision is inoperative to the
extent that it is less stringent or requires information different
from the federal requirement, in which event the federal requirement
is a part of this chapter.
12615.5. The violation of any provision of this chapter, except the
provisions of Section 12604.5, is a misdemeanor punishable by a fine
of not less than twenty-five dollars ($25) nor more than five
hundred dollars ($500), or by imprisonment in the county jail for a
term not to exceed six months, or by both such fine and imprisonment.
BUSINESS AND PROFESSIONS CODE
SECTION 12601-12615.5
12601. This chapter is designed to protect purchasers of any
commodity within its provisions against deception or
misrepresentation. Packages and their labels should enable consumers
to obtain accurate information as to the quantity of the contents and
should facilitate value comparisons.
It is hereby declared to be the policy of the Legislature to
assist in attaining these goals.
12602. (a) It is unlawful for any person engaged in the packaging
or labeling of any commodity for distribution or sale, or for any
person (other than a common carrier for hire, a contract carrier for
hire, or a freight forwarder for hire) engaged in the distribution of
any packaged or labeled commodity, to distribute or to cause to be
distributed any such commodity if the commodity is contained in a
package, or if there is affixed to that commodity a label, which does
not conform to the provisions of this chapter or the regulations
adopted under the authority of this chapter or the provisions of, or
the regulations adopted under, Chapter 6.6 (commencing with Section
12665), Chapter 14 (commencing with Section 13400), or Chapter 15
(commencing with Section 13700).
(b) The prohibition contained in subdivision (a) does not apply to
persons engaged in business as wholesale or retail distributors of
commodities, except to the extent that those persons (1) are engaged
in the packaging or labeling of such commodities, (2) prescribe or
specify by any means the manner in which such commodities are
packaged or labeled, or (3) have knowledge of the violation of any
provision of this chapter or of Chapter 6.6 (commencing with Section
12665), Chapter 14 (commencing with Section 13400), or Chapter 15
(commencing with Section 13700).
12603. No person subject to the prohibition in Section 12602 shall
distribute any packaged commodity unless it is in conformity with
regulations that shall be established by the director that shall
provide:
(a) The commodity shall bear a label specifying the identity of
the commodity and the name and place of business of the manufacturer,
packer, or distributor.
(b) The net quantity of contents (in terms of weight or mass,
measure, numerical count, or time) shall be separately and accurately
stated in a uniform location upon the principal display panel of
that label, using the most appropriate units of both the customary
inch-pound system of measure, and except as provided in subdivisions
(c) and (d), the SI (Systeme International d'Unites) metric system.
(c) On a random package labeled in terms of pounds and decimal
fractions of the pound, the statement may be carried out to not more
than three decimal places and is not required to, but may include a
statement in terms of the SI metric system carried out to not more
than three decimal places.
(d) The requirements of subdivision (b) concerning labeling using
the metric system do not apply to nonconsumer packages, foods that
are packaged at the retail store level, or to the sale or
distribution of products whose labels have been printed prior to
February 14, 1994.
(e) This section shall become operative on February 14, 1994.
12605. No person subject to the prohibition contained in Section
12602 shall distribute or cause to be distributed in commerce any
packaged commodity if any qualifying words or phrases appear in
conjunction with the separate statement of the net quantity of
contents required by Section 12603(b), but nothing in this chapter
shall prohibit supplemental statements, at other places on the
package describing in nondeceptive terms the net quantity of
contents: provided, that such supplemental statements of net quantity
of contents shall not include any term qualifying a unit of weight,
measure, or count that tends to exaggerate the amount of the
commodity contained in the package.
In no case shall any declaration of quantity be qualified by the
addition of the words "minimum," or "when packed," or words of
similar import; nor shall any unit of weight, measure or count be
qualified by any term (such as jumbo, giant, full, or the like) that
tends to exaggerate the amount of the commodity in the package.
12606. (a) No container wherein commodities are packed shall have a
false bottom, false sidewalls, false lid or covering, or be
otherwise so constructed or filled, wholly or partially, as to
facilitate the perpetration of deception or fraud.
(b) No container shall be made, formed, or filled as to be
misleading. 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 machines used for enclosing the contents
of the package.
(3) Unavoidable product settling during shipping and handling.
(4) The need to utilize a larger than required package or
container to provide adequate space for the legible presentation of
mandatory and necessary labeling information, such as those based on
the regulations adopted by the Food and Drug Administration or state
or federal agencies under federal or state law, laws or regulations
adopted by foreign governments, or under an industrywide voluntary
labeling program.
(5) The fact that the product consists of a commodity that is
packaged in a decorative or representational container where the
container is part of the presentation of the product and has value
that is both significant in proportion to the value of the product
and independent of its function to hold the product, such as a gift
combined with a container that is intended for further use after the
product is consumed, or durable commemorative or promotional
packages.
(6) An 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 labeling, discourage
pilfering, facilitate handling, or accommodate tamper-resistant
devices.
(7) The product container bears a reasonable relationship to the
actual amount of product contained inside, and the dimensions of the
actual product container, the product, or the amount of product
therein is visible to the consumer at the point of sale, or where
obvious secondary use packaging is involved.
(8) The dimensions of the product or immediate product container
are visible through the exterior packaging, or where the actual size
of the product or immediate product container is clearly and
conspicuously depicted on the exterior packaging, accompanied by a
clear and conspicuous disclosure that the representation is the
"actual size" of the product or the immediate product container.
(9) The presence of any headspace within an immediate product
container necessary to facilitate the mixing, adding, shaking, or
dispensing of liquids or powders by consumers prior to use.
(10) The exterior packaging contains a product delivery or dosing
device if the device is visible, or a clear and conspicuous depiction
of the device appears on the exterior packaging, or it is readily
apparent from the conspicuous exterior disclosures or the nature and
name of the product that a delivery or dosing device is contained in
the package.
(11) The exterior packaging or immediate product container is a
kit that consists of a system, or multiple components, designed to
produce a particular result that is not dependent upon the quantity
of the contents, if the purpose of the kit is clearly and
conspicuously disclosed on the exterior packaging.
(12) The exterior packaging of the product is routinely displayed
using tester units or demonstrations to consumers in retail stores,
so that customers can see the actual, immediate container of the
product being sold, or a depiction of the actual size thereof prior
to purchase.
(13) The exterior packaging consists of single or multiunit
presentation boxes of holiday or gift packages if the purchaser can
adequately determine the quantity and sizes of the immediate product
container at the point of sale.
(14) The exterior packaging is for a combination of one purchased
product, together with a free sample or gift, wherein the exterior
packaging is necessarily larger than it would otherwise be due to the
inclusion of the sample or gift, if the presence of both products
and the quantity of each product are clearly and conspicuously
disclosed on the exterior packaging.
(15) The exterior packaging or immediate product container
encloses computer hardware or software designed to serve a particular
computer function, if the particular computer function to be
performed by the computer hardware or software is clearly and
conspicuously disclosed on the exterior packaging.
(c) Any sealer may seize a container that facilitates the
perpetration of deception or fraud 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 conditions the court may
impose to insure 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.
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.
12607. Whenever a packaged commodity is offered for sale, exposed
for sale or sold without a statement of net quantity appearing
thereon as required by this chapter, the sealer shall in writing
order the commodity off sale and require that a correct statement of
net quantity be placed on the commodity before the same may be
released by the sealer.
12609. The director shall adopt necessary regulations to carry out
the purpose of this division and for the testing of packages to
verify the net quantity statements. In adopting these regulations,
the director shall adopt by reference the packaging and labeling
requirements recommended by the National Conference on Weights and
Measures and published in the current edition of the National
Institute of Standards and Technology Handbook 130, Uniform Packaging
and Labeling Regulation, except insofar as those requirements are
specifically modified, amended, or rejected by regulation by the
director. The regulations shall include exemptions from full
compliance with this chapter for good and sufficient reasons. Any
exemptions affecting consumer commodities shall be in conformance
with exemptions permitted by federal regulations. Any regulation, or
amendment thereof, shall be adopted by the director in conformity
with Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code.
This section shall become operative on February 14, 1994.
12610. The director may promulgate regulations similar to those
promulgated by the Secretary of Health, Education, and Welfare or the
Federal Trade Commission pursuant to the Fair Packaging and Labeling
Act (P.L. 89-755; 80 Stat. 1296; 15U.S.C. 1451-1461) effective to--
1. Establish and define standards for characterization of the size
of a package enclosing any commodity, which may be used to
supplement the label statement of net quantity of contents of
packages containing such commodity, but this paragraph shall not be
construed as authorizing any limitation on the size, shape, weight,
dimensions, or number of packages which may be used to enclose any
commodity;
2. Require that the label on each package of a commodity (other
than one which is a food within the meaning of Section 201(f) of the
Federal Food, Drug, and Cosmetic Act) bear the common or usual name
of such consumer commodity, if any.
12611. It is unlawful to pack, ship, or sell any commodity in a
container which does not conform to all the specifications of this
chapter; or which is not conspicuously marked, branded, or otherwise
labeled as required by this chapter; or on which any word, statement
or other information required by this chapter is not prominently
placed, in such terms and with such conspicuousness, as compared with
other words, statements, designs or devices on the label or
container, as to render it likely to be read and understood by
ordinary persons under customary conditions of purchase and use.
12612. The sale of any commodity packaged in a container, wherein
both the container and the contents thereof comply with any act of
Congress or rules or regulations promulgated thereunder, appertaining
to weight, measure or count, does not violate the provisions of this
chapter; nor does the sale of malt beverages in containers complying
with a rule, regulation or an approval of the United States Treasury
Department, Internal Revenue Service or Bureau of Alcohol, Tobacco
and Firearms, or of the State Department of Public Health and
pertaining to weight, measure or count constitute a violation of the
provisions of this chapter.
12613. If any provision of this chapter is less stringent or
requires information different from any requirement of Section 4 of
the act of Congress entitled "Fair Packaging and Labeling Act" (P.L.
89-755; 80 Stat. 1296; 15 U.S.C. 1451-1461) or of any regulation
promulgated pursuant to that act, the provision is inoperative to the
extent that it is less stringent or requires information different
from the federal requirement, in which event the federal requirement
is a part of this chapter.
12615.5. The violation of any provision of this chapter, except the
provisions of Section 12604.5, is a misdemeanor punishable by a fine
of not less than twenty-five dollars ($25) nor more than five
hundred dollars ($500), or by imprisonment in the county jail for a
term not to exceed six months, or by both such fine and imprisonment.
BUSINESS AND PROFESSIONS CODE
SECTION 12601-12615.5
12601. This chapter is designed to protect purchasers of any
commodity within its provisions against deception or
misrepresentation. Packages and their labels should enable consumers
to obtain accurate information as to the quantity of the contents and
should facilitate value comparisons.
It is hereby declared to be the policy of the Legislature to
assist in attaining these goals.
12602. (a) It is unlawful for any person engaged in the packaging
or labeling of any commodity for distribution or sale, or for any
person (other than a common carrier for hire, a contract carrier for
hire, or a freight forwarder for hire) engaged in the distribution of
any packaged or labeled commodity, to distribute or to cause to be
distributed any such commodity if the commodity is contained in a
package, or if there is affixed to that commodity a label, which does
not conform to the provisions of this chapter or the regulations
adopted under the authority of this chapter or the provisions of, or
the regulations adopted under, Chapter 6.6 (commencing with Section
12665), Chapter 14 (commencing with Section 13400), or Chapter 15
(commencing with Section 13700).
(b) The prohibition contained in subdivision (a) does not apply to
persons engaged in business as wholesale or retail distributors of
commodities, except to the extent that those persons (1) are engaged
in the packaging or labeling of such commodities, (2) prescribe or
specify by any means the manner in which such commodities are
packaged or labeled, or (3) have knowledge of the violation of any
provision of this chapter or of Chapter 6.6 (commencing with Section
12665), Chapter 14 (commencing with Section 13400), or Chapter 15
(commencing with Section 13700).
12603. No person subject to the prohibition in Section 12602 shall
distribute any packaged commodity unless it is in conformity with
regulations that shall be established by the director that shall
provide:
(a) The commodity shall bear a label specifying the identity of
the commodity and the name and place of business of the manufacturer,
packer, or distributor.
(b) The net quantity of contents (in terms of weight or mass,
measure, numerical count, or time) shall be separately and accurately
stated in a uniform location upon the principal display panel of
that label, using the most appropriate units of both the customary
inch-pound system of measure, and except as provided in subdivisions
(c) and (d), the SI (Systeme International d'Unites) metric system.
(c) On a random package labeled in terms of pounds and decimal
fractions of the pound, the statement may be carried out to not more
than three decimal places and is not required to, but may include a
statement in terms of the SI metric system carried out to not more
than three decimal places.
(d) The requirements of subdivision (b) concerning labeling using
the metric system do not apply to nonconsumer packages, foods that
are packaged at the retail store level, or to the sale or
distribution of products whose labels have been printed prior to
February 14, 1994.
(e) This section shall become operative on February 14, 1994.
12605. No person subject to the prohibition contained in Section
12602 shall distribute or cause to be distributed in commerce any
packaged commodity if any qualifying words or phrases appear in
conjunction with the separate statement of the net quantity of
contents required by Section 12603(b), but nothing in this chapter
shall prohibit supplemental statements, at other places on the
package describing in nondeceptive terms the net quantity of
contents: provided, that such supplemental statements of net quantity
of contents shall not include any term qualifying a unit of weight,
measure, or count that tends to exaggerate the amount of the
commodity contained in the package.
In no case shall any declaration of quantity be qualified by the
addition of the words "minimum," or "when packed," or words of
similar import; nor shall any unit of weight, measure or count be
qualified by any term (such as jumbo, giant, full, or the like) that
tends to exaggerate the amount of the commodity in the package.
12606. (a) No container wherein commodities are packed shall have a
false bottom, false sidewalls, false lid or covering, or be
otherwise so constructed or filled, wholly or partially, as to
facilitate the perpetration of deception or fraud.
(b) No container shall be made, formed, or filled as to be
misleading. 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 machines used for enclosing the contents
of the package.
(3) Unavoidable product settling during shipping and handling.
(4) The need to utilize a larger than required package or
container to provide adequate space for the legible presentation of
mandatory and necessary labeling information, such as those based on
the regulations adopted by the Food and Drug Administration or state
or federal agencies under federal or state law, laws or regulations
adopted by foreign governments, or under an industrywide voluntary
labeling program.
(5) The fact that the product consists of a commodity that is
packaged in a decorative or representational container where the
container is part of the presentation of the product and has value
that is both significant in proportion to the value of the product
and independent of its function to hold the product, such as a gift
combined with a container that is intended for further use after the
product is consumed, or durable commemorative or promotional
packages.
(6) An 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 labeling, discourage
pilfering, facilitate handling, or accommodate tamper-resistant
devices.
(7) The product container bears a reasonable relationship to the
actual amount of product contained inside, and the dimensions of the
actual product container, the product, or the amount of product
therein is visible to the consumer at the point of sale, or where
obvious secondary use packaging is involved.
(8) The dimensions of the product or immediate product container
are visible through the exterior packaging, or where the actual size
of the product or immediate product container is clearly and
conspicuously depicted on the exterior packaging, accompanied by a
clear and conspicuous disclosure that the representation is the
"actual size" of the product or the immediate product container.
(9) The presence of any headspace within an immediate product
container necessary to facilitate the mixing, adding, shaking, or
dispensing of liquids or powders by consumers prior to use.
(10) The exterior packaging contains a product delivery or dosing
device if the device is visible, or a clear and conspicuous depiction
of the device appears on the exterior packaging, or it is readily
apparent from the conspicuous exterior disclosures or the nature and
name of the product that a delivery or dosing device is contained in
the package.
(11) The exterior packaging or immediate product container is a
kit that consists of a system, or multiple components, designed to
produce a particular result that is not dependent upon the quantity
of the contents, if the purpose of the kit is clearly and
conspicuously disclosed on the exterior packaging.
(12) The exterior packaging of the product is routinely displayed
using tester units or demonstrations to consumers in retail stores,
so that customers can see the actual, immediate container of the
product being sold, or a depiction of the actual size thereof prior
to purchase.
(13) The exterior packaging consists of single or multiunit
presentation boxes of holiday or gift packages if the purchaser can
adequately determine the quantity and sizes of the immediate product
container at the point of sale.
(14) The exterior packaging is for a combination of one purchased
product, together with a free sample or gift, wherein the exterior
packaging is necessarily larger than it would otherwise be due to the
inclusion of the sample or gift, if the presence of both products
and the quantity of each product are clearly and conspicuously
disclosed on the exterior packaging.
(15) The exterior packaging or immediate product container
encloses computer hardware or software designed to serve a particular
computer function, if the particular computer function to be
performed by the computer hardware or software is clearly and
conspicuously disclosed on the exterior packaging.
(c) Any sealer may seize a container that facilitates the
perpetration of deception or fraud 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 conditions the court may
impose to insure 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.
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.
12607. Whenever a packaged commodity is offered for sale, exposed
for sale or sold without a statement of net quantity appearing
thereon as required by this chapter, the sealer shall in writing
order the commodity off sale and require that a correct statement of
net quantity be placed on the commodity before the same may be
released by the sealer.
12609. The director shall adopt necessary regulations to carry out
the purpose of this division and for the testing of packages to
verify the net quantity statements. In adopting these regulations,
the director shall adopt by reference the packaging and labeling
requirements recommended by the National Conference on Weights and
Measures and published in the current edition of the National
Institute of Standards and Technology Handbook 130, Uniform Packaging
and Labeling Regulation, except insofar as those requirements are
specifically modified, amended, or rejected by regulation by the
director. The regulations shall include exemptions from full
compliance with this chapter for good and sufficient reasons. Any
exemptions affecting consumer commodities shall be in conformance
with exemptions permitted by federal regulations. Any regulation, or
amendment thereof, shall be adopted by the director in conformity
with Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code.
This section shall become operative on February 14, 1994.
12610. The director may promulgate regulations similar to those
promulgated by the Secretary of Health, Education, and Welfare or the
Federal Trade Commission pursuant to the Fair Packaging and Labeling
Act (P.L. 89-755; 80 Stat. 1296; 15U.S.C. 1451-1461) effective to--
1. Establish and define standards for characterization of the size
of a package enclosing any commodity, which may be used to
supplement the label statement of net quantity of contents of
packages containing such commodity, but this paragraph shall not be
construed as authorizing any limitation on the size, shape, weight,
dimensions, or number of packages which may be used to enclose any
commodity;
2. Require that the label on each package of a commodity (other
than one which is a food within the meaning of Section 201(f) of the
Federal Food, Drug, and Cosmetic Act) bear the common or usual name
of such consumer commodity, if any.
12611. It is unlawful to pack, ship, or sell any commodity in a
container which does not conform to all the specifications of this
chapter; or which is not conspicuously marked, branded, or otherwise
labeled as required by this chapter; or on which any word, statement
or other information required by this chapter is not prominently
placed, in such terms and with such conspicuousness, as compared with
other words, statements, designs or devices on the label or
container, as to render it likely to be read and understood by
ordinary persons under customary conditions of purchase and use.
12612. The sale of any commodity packaged in a container, wherein
both the container and the contents thereof comply with any act of
Congress or rules or regulations promulgated thereunder, appertaining
to weight, measure or count, does not violate the provisions of this
chapter; nor does the sale of malt beverages in containers complying
with a rule, regulation or an approval of the United States Treasury
Department, Internal Revenue Service or Bureau of Alcohol, Tobacco
and Firearms, or of the State Department of Public Health and
pertaining to weight, measure or count constitute a violation of the
provisions of this chapter.
12613. If any provision of this chapter is less stringent or
requires information different from any requirement of Section 4 of
the act of Congress entitled "Fair Packaging and Labeling Act" (P.L.
89-755; 80 Stat. 1296; 15 U.S.C. 1451-1461) or of any regulation
promulgated pursuant to that act, the provision is inoperative to the
extent that it is less stringent or requires information different
from the federal requirement, in which event the federal requirement
is a part of this chapter.
12615.5. The violation of any provision of this chapter, except the
provisions of Section 12604.5, is a misdemeanor punishable by a fine
of not less than twenty-five dollars ($25) nor more than five
hundred dollars ($500), or by imprisonment in the county jail for a
term not to exceed six months, or by both such fine and imprisonment.
