BILL ANALYSIS
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|Hearing Date:April 12, 2004 |Bill No:SB |
| |1580 |
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SENATE COMMITTEE ON BUSINESS AND PROFESSIONS
Senator Liz Figueroa, Chair
Bill No: SB 1580Author: Bowen
As Amended: April 12, 2004
Fiscal: Yes
SUBJECT: Food product advertising: trans fatty acids.
SUMMARY: Requires manufacturers to accompany claims of
"low saturated fat" or "reduced saturated fat" with the
phrase "Contains Trans Fat" if the product contains trans
fat.
Existing law:
1)Regulates false and misleading advertising generally, and
subjects violators to both civil and criminal penalties.
2)Establishes the Sherman Food, Drug, and Cosmetic Law
which governs packaging, labeling, advertising,
manufacture and sale of foods and drugs, and is
administered by the State Department of Health Services.
3)Specifies that any food is misbranded if its labeling is
false or misleading in any particular.
Existing federal law, the Federal Food, Drug, Cosmetic Act
and the Nutrition Labeling and Education Act of 1990:
1)Requires the Federal Drug Administration (FDA) to
regulate nutritional labeling information and provides,
among other things, that certain nutrients and food
components be included in nutrition labeling.
2)Sets nutrient content claims for fat and fatty acids and
specifies that a claim about the level of fat and fatty
acids in a food may only be used in accordance with the
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definition of that term. Specifically, prescribes
conditions under which the terms "low saturated fat" and
"reduced saturated fat" can be used.
3)Requires food manufacturers to list trans fat on the
Nutrition Facts panel immediately under saturated fat on
the nutrition label by January 1, 2006.
4)Provides for national uniform nutrition labeling by
providing for the preemption of certain types of state
and local labeling requirements that are not identical to
applicable federal requirements, including food
standards, nutrition labeling, health claims and
ingredient declaration. However, permits states to
petition FDA for exemption of state requirements from
federal preemption of state food labeling, which may be
granted if the state shows that the state requirement: 1)
would not cause any food to be in violation of any
applicable requirement under federal law; 2) would not
unduly burden interstate commerce; and 3) is designed to
address a particular need for information which is not
met by federal law.
5)Defines labeling to mean all labels and other written,
printed, or graphic matter upon any article or any of its
containers or wrappers, or accompanying such article.
This bill:
1)Makes it unlawful for a manufacturer, wholesaler,
distributor, or other person to place a claim upon a
product declaring the content of the product to be "low
saturated fat" or "reduced saturated fat" without also
including the phrase "Contains Trans Fat" if the product
contains trans fat.
2)Requires the trans fat disclosure to be in the same
typeface as the claim.
3)Makes it false and misleading advertising for a
manufacturer, wholesaler, distributor, or other person
that packages products containing trans fatty acids to
willfully or negligently fail to include in a claim that
trans fatty acids are present in a product.
4)Specifies that this requirement is only applicable when
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there is a claim made on a product about the low level of
saturated fat, as permitted under federal law, when the
amount of saturated fat contained in the product does not
exceed a specified maximum amount.
5)Defines "hydrogenation" as a process of adding hydrogen
to liquid oils, enabling liquid oils to solidify, which
increases the shelf life and flavor stability of the
liquid oils and the foods that contain those liquid oils.
6)Defines "trans fatty acids" as acids made through the
process of hydrogenation that solidifies liquid oils,
thereby increasing the shelf life of processed foods
containing the liquid oils.
7)Specifies that the intent of the Legislature is to enable
California consumers to make knowledgeable choices about
food consumption based on the disclosure of information
concerning the makeup of that food and cites findings
from a report on trans fat, as specified.
FISCAL EFFECT: Unknown
COMMENTS:
1.Purpose. This bill is sponsored by the Author.
According to the Author, SB 1580 will ensure that
consumers who rely on "low fat" advertising claims know
exactly what is in the food they are buying. This bill
requires manufacturers that want to make a "low saturated
fat" or "reduced saturated fat" claim to also include as
part of the claim that the product contains trans fat.
As explained by the Author, there are two types of
artery-clogging fats which can be found in foods that
many people eat every day. Consumers depend on
"Nutrition Facts" labels which FDA requires manufacturers
to put on products, and they assume it is an accurate
assessment of what they are eating. Currently,
nutritional fact panels only list one type of bad fat --
saturated fat -- but the other type of bad fat, trans
fat, is not disclosed on the package.
The author cites a 1999 cost benefit analysis prepared for
FDA that estimated acknowledging trans fat content on
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labels would save an estimated $3 million to $8 million
annually in preventing heart disease costs and save
approximately 2,000 to 5,000 lives a year.
Other countries are also addressing the issue of trans fats
in foods. Last year in Denmark, a law was enacted
limiting the amount of trans fat in processed foods.
Similarly, a bill has been introduced in Canada that
proposes that trans fats be limited to no more than 2% of
the total fats in processed foods.
2.Background on Trans fat. Trans fatty acids, or trans
fat, are made through the process of hydrogenation that
solidifies liquid oils. Hydrogenation increases the
shelf life and flavor stability of these oils and foods
that contain them. It is found in vegetable shortenings,
some margarines, crackers, cookies, salted snack foods,
and other foods. Hydrogenation is what turns liquid oil
into Crisco or stick margarines.
Higher intakes of saturated and trans fats and dietary
cholesterol raise low density lipoprotein (LDL or "bad")
cholesterol in the blood. Trans fat also lowers high
density lipoprotein (HDL or "good") cholesterol in the
blood.
3.FDA Issued Rule Requiring Disclosure of Trans Fat in July
2003. In 1994, the Center for Science in the Public
Interest (CSPI), a consumer advocacy organization, filed
a petition (amended in July 1998) with FDA requesting
that the agency take steps to require trans fat to be
listed on nutrition labels and claims. In response to
the CSPI petition, FDA issued a proposed rule in the
Federal Register in November 1999 to amend the
regulations to address the issue of disclosing trans fat
content and the rule became final in July 2003. The
ruling requires that trans fat be listed on nutrition
labels immediately under saturated fat by January 1,
2006.
However, because the final rule did not address nutrient
content or health claims for trans fat, FDA has issued an
advance notice of proposed rulemaking to: 1) solicit
information and data that potentially could be used to
establish new nutrient content claims about trans fat; 2)
establish qualifying criteria for trans fat in current
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nutrient content claims for saturated fat and
cholesterol, lean and extra lean claims, and health
claims that contain a message about cholesterol-raising
lipids; and 3) establish disclosure and disqualifying
criteria to help consumers make heart-healthy food
choices. FDA is also requesting comments on whether it
should consider statements about trans fat, either alone
or in combination with saturated fat and cholesterol, as
a footnote in the Nutrition Facts panel or as a
disclosure statement in conjunction with claims to
enhance consumers' understanding about such
cholesterol-raising lipids and how to use the information
to make healthy food choices.
This open comment period ends April 15, 2004.
4.Benefits of Disclosing Trans Fat. FDA estimates that
three years after the January 1, 2006 effective date,
trans fat labeling would annually prevent from 600 to
1,200 heart attacks and save 250 to 500 lives. Based on
this estimate, the trans fat labeling requirement will
realize a cost savings of $900 million to $1.8 billion
per year in medical costs, lost productivity, and pain
and suffering.
5.Possible Preemption by Federal Law. FDA has determined
that the final rule on trans fat has a preemptive effect
on state law. Section 403A of the Federal Food, Drug and
Cosmetic Act (21 U.S.C. 343-1) is an express preemption
provision. That section provides that "no State or
political subdivision of a State may directly or
indirectly establish under any authority or continue in
effect as to any food in interstate commerce" certain
food labeling requirements, unless an exemption is
provided by the Secretary (and, by delegation, FDA).
Relevant to this final rule, one such requirement that
States and political subdivisions may not adopt is any
requirement for nutrition labeling of food that is not
identical to federal requirements. According to FDA,
prior to the effective date of the final rule on trans
fat, this provision operated to preempt States from
imposing nutrition labeling requirements concerning trans
fat because no such requirements had been imposed by FDA.
Once the rule becomes effective, states will be
preempted from imposing any nutritional labeling
requirements for trans fat that are not identical to
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those required by this rule.
6.Will Manufacturers Have Sufficient Time to Comply with
this Measure? Given the January 1, 2005 implementation
date in this bill, would manufacturers have enough time
to comply with this bill's requirement? The author may
wish to consider giving additional time (i.e., extending
the bill's implementation date) for moving out current
inventories.
7.Previous Legislation. SB 1610 (Bowen) of 2002 would have
required manufacturers and producers of food and dietary
supplements for human consumption to include on the label
information stating the levels of trans fat in the
product, when the manufacturer or producer claims the
food product is low in saturated fat.
8.Arguments in Support. Consumers Union believes that this
bill is necessary to correct a "serious oversight" in
FDA's new regulation on the labeling of trans fat. This
omission in the ruling will allow food manufacturers to
make that claim that their products are low-fat or
fat-free on the front of the food packaging without
counting the levels of trans fat in the product.
Consumers Union states that such claims are tantamount to
deceptive advertising since it is well-known that trans
fat lurks in a multitude of "low-fat" foods.
The Diabetes Coalition of California (DCC) states that many
consumers buy products advertised to be "low fat" because
they require a diet low in fat for medical reasons.
Hidden trans fats undermine the efforts of individuals to
limit unhealthy fat in their diet. DCC believes that
providing individuals with diabetes and other consumers
with this information will help them make better food
choices, and thereby prevent health problems.
9.Arguments in Opposition. Opponents of this bill state
that labeling requirement for food products is a federal
issue and that the state is preempted from acting in this
area by federal law.
Opponents also have stated that they are prepared to label
trans fat and support the FDA process. The food industry
asserts that it is actively engaged in the design and
manufacturing processes required to ensure that all
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products are in compliance with the January 1, 2006
deadline.
There is concern that if California dictates a different
standard for labeling, food processors and manufacturers
will be subject to a patchwork of conflicting and
inconsistent state regulations. The National Food
Processors Association believes that the requirements
imposed by the bill would impede commerce.
10.Suggested Amendment. Though this bill adds provisions
to the false and misleading advertising section of the
Business and Professions Code (Section 17500 et seq.), it
only prescribes what can or cannot be on the label and is
not applicable to other advertising situations.
The Author may wish to expand the disclosure of trans fat
to include other types of advertising relating to
products (i.e., ads on television or in magazines). In
the event that the current labeling requirement in this
bill is preempted by federal law, then advertising which
is not preempted would still stand.
If the Author decides to amend the bill to extend the trans
fat disclosure to include all advertising, a severability
clause should be inserted to ensure that if any provision
of the bill is held invalid, that invalidity shall not
affect other provisions of the bill.
NOTE: Double-referral to Judiciary Committee
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SUPPORT AND OPPOSITION:
Support:
California Alliance for Consumer Protection
Consumers Union
Diabetes Coalition of California
Opposition:
California Chamber of Commerce
California League of Food Processors
Dairy Institute of California
Grocery Manufacturers of America
National Food Processors Association
Consultant:Robin Hartley