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As so interpreted, this California provision (Cal. Bus. & Prof. Code §12606) is clearly "of the type" covered by Section 403(d), because both address slack fill. The interpretation of Section 12606 appears not to be identical to the Federal interpretation, however, because it prohibits all "nonfunctional slack fill packaging whether or not there is other proof of deception or fraud." The language of FPLA was adopted as the standard by California in developing its State statute.

By prohibiting what it considers to be inherently misleading slack fill, California has been particularly aggressive in adopting a unique approach that differs from that of FDA and other States. It may be that other States have not identified this issue as a problem worthy of independent legislative action (GMA, 1991). As the Assistant Director of the Consumer Protection Division of the Georgia Department of Agriculture stated, "We have not encountered problems with container fill and deceptive packaging. If we do, we feel the FDCA is more than adequate if enforced. Sections 101.18 and 101.105 of Title 21 CFR adequately deal with this, but again, lack enforcement" (Niles, 1991a).

However, in the view of the State Attorneys General and many other State officials, until such time as FDA promulgates regulations to interpret this section of FDCA, statutes such as California Business and Professions Code Section 12606 and any State statutes dealing with downsizing should prevail (State Attorneys General, 1991).

Industry Perspective

GMA supports the decision of FDA not to promulgate regulations pertaining to FDCA Section 403(d). The Association's comment to the Committee was that "that determination should stand as the national approach to the matter" (GMA, 1991).

A representative of the National Frozen Pizza Institute (NFPI) indicated that, despite FDA's failure to establish violations of FDCA Section 403(d) through litigation, the Institute also believes that FDA has adequately implemented this provision. Support for this argument comes from the fact that the Act requires the net weight statement to appear on every package and, in many cases, FDA has established specific product standards of fin (NFPI, 1991). This same view was held by a representative speaking on behalf of the Quaker Oats Company and Schreiber Foods, Inc. (Quaker Oats and Schreiber Foods, 1991).

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