BILL NUMBER: SB 1420 CHAPTERED
BILL TEXT
CHAPTER 600
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2008
APPROVED BY GOVERNOR SEPTEMBER 30, 2008
PASSED THE SENATE AUGUST 31, 2008
PASSED THE ASSEMBLY AUGUST 27, 2008
AMENDED IN ASSEMBLY AUGUST 22, 2008
AMENDED IN ASSEMBLY AUGUST 8, 2008
AMENDED IN SENATE MAY 13, 2008
INTRODUCED BY Senators Padilla and Migden
(Principal coauthors: Assembly Members DeSaulnier and Leno)
(Coauthors: Senators Alquist, Cedillo, and Romero)
(Coauthors: Assembly Members Coto and Solorio)
FEBRUARY 21, 2008
An act to add Section 114094 to the Health and Safety Code,
relating to food facilities.
LEGISLATIVE COUNSEL'S DIGEST
SB 1420, Padilla. Food facilities: nutritional information.
The California Retail Food Code provides for the regulation of
health and sanitation standards for retail food facilities by the
State Department of Public Health. Under existing law, local health
agencies are primarily responsible for enforcing this code. A
violation of any of these provisions is punishable as a misdemeanor.
This bill would require, commencing July 1, 2009, to December 31,
2010, inclusive, each food facility, as defined, to either disclose
nutritional information, as defined, or calorie count information, as
defined.
The bill would require, on and after January 1, 2011, each food
facility in the state that meets specified criteria to disclose
calorie content information per standard menu item, as specified.
The bill would provide that, on and after July 1, 2009, a food
facility that violates the provisions of the bill is guilty of an
infraction, and would specifically provide that a violation of these
provisions is not a misdemeanor. By creating an infraction and adding
a new local enforcement duty, this bill would impose a
state-mandated local program.
The bill would declare that its provisions, as well as other state
laws that regulate the disclosure of nutritional information, is a
matter of statewide concern and would prohibit an ordinance or
regulation of a local government from regulating the disclosure of
nutritional information by a subject food facility.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) Over the past two decades, there has been a significant
increase in the number of meals prepared or eaten outside the home,
with an estimated one-third of calories being consumed in, and almost
one-half of total food dollars being spent on, food purchased from
or eaten at restaurants and other food facilities.
(b) Increased caloric intake is a key factor contributing to the
alarming increase in obesity in the United States. According to the
Centers for Disease Control and Prevention, two-thirds of American
adults are overweight or obese, and the rates of obesity have tripled
in children and teens since 1980.
(c) Obesity increases the risk of diabetes, heart disease, stroke,
some cancers, and other health problems.
(d) Broader availability of nutrition information regarding foods
served at restaurants and other food service establishments would
allow customers to make more informed decisions about the food they
purchase.
(e) Three-quarters of American adults report using food labels on
packaged foods, which are required by the federal Nutrition Labeling
and Education Act of 1990.
(f) Availability of nutrition information regarding restaurant
food assists consumers who are monitoring their diets or dealing with
chronic diseases, such as cardiovascular disease and diabetes.
(g) Consumers should be provided with point of purchase access to
nutritional information when eating out in order to make informed
decisions involving their health and diet.
(h) It is the intent of the Legislature to provide consumers with
better access to nutritional information about prepared foods sold at
food facilities so that consumers can understand the nutritional
value of available foods.
SEC. 2. Section 114094 is added to the Health and Safety Code, to
read:
114094. (a) For purposes of this section, the following
definitions shall apply:
(1) "Food facility" means a food facility in the state that
operates under common ownership or control with at least 19 other
food facilities with the same name in the state that offer for sale
substantially the same menu items, or operates as a franchised outlet
of a parent company with at least 19 other franchised outlets with
the same name in the state that offer for sale substantially the same
menu items, except that a "food facility" does not include the
following:
(A) Certified farmer's markets.
(B) Commissaries.
(C) Grocery stores, except for separately owned food facilities to
which this section otherwise applies that are located in the grocery
store. For purposes of this paragraph, "grocery store" means a store
primarily engaged in the retail sale of canned food, dry goods,
fresh fruits and vegetables, and fresh meats, fish, and poultry.
"Grocery store" includes convenience stores.
(D) Licensed health care facilities.
(E) Mobile support units.
(F) Public and private school cafeterias.
(G) Restricted food service facilities.
(H) Retail stores in which a majority of sales are from a
pharmacy, as defined in Section 4037 of the Business and Professions
Code.
(I) Vending machines.
(2) "Calorie content information" means the total number of
calories per standard menu item, as that item is usually prepared and
offered for sale.
(3) "Drive-through" means an area where a customer may provide an
order for and receive standard menu items while occupying a motor
vehicle.
(4) "Menu board" means a posted list or pictorial display of food
or beverage items offered for sale by a food facility.
(5) "Nutritional information" includes, but is not limited to, all
of the following, per standard menu item, as that item is usually
prepared and offered for sale:
(A) Total number of calories.
(B) Total number of grams of carbohydrates.
(C) Total number of grams of saturated fat.
(D) Total number of milligrams of sodium.
(6) "Point of sale" means the location where a customer makes an
order.
(7) "Standard menu item" means a food or beverage item offered for
sale by a food facility through a menu, menu board, or display tag
at least 180 days per calendar year, except that "standard menu item
does not include any of the following:
(A) A food item that is customized on a case-by-case basis in
response to an unsolicited customer request.
(B) An alcoholic beverage, the labeling of which is not regulated
by the federal Food and Drug Administration.
(C) A packaged food otherwise subject to the nutrition labeling
requirements of the federal Nutrition Labeling and Education Act of
1990.
(D) A food Hem when served at a consumer self-service salad bar.
(E) A food or beverage Hem when served at a consumer self-service
buffet.
(8) "Reasonable basis" means any reasonable means recognized by
the federal Food and Drug Administration of determining nutritional
information, as well as calorie content information, for a standard
menu item, as usually prepared and offered for sale, including, but
not limited to, nutrient databases and laboratory analyses.
(9) "Appetizer" means a food item that in generally served prior
to a food item that is generally regarded as the primary food item in
a meal. An "appetizer" includes a first course, starter, or small
plate.
(10) "Dessert" means a food item that in generally served after a
food item that is generally regarded as the primary food item in a
meal. "Dessert" includes, but is not limited to, cakes, pastries,
pies, ice cream and food items that contain ice cream, confections,
and other sweets.
(b) (1) Commencing July 1, 2009, to December 31, 2010, inclusive,
every food facility shall either disclose nutritional information as
required by paragraph (2), or comply with subdivision (c) during this
period of time.
(2) (A) In order to comply with paragraph (1), a food facility
that does not provide sit-down service shall disclose the information
in a clear and conspicuous manner on a brochure that is made
available at the point of sale prior to or during the placement of an
order. A food facility that provides sit-down service shall provide
the nutritional information in a clear and conspicuous size and
typeface on at least one of the following:
(i) A brochure available on the table.
(ii) A menu next to each standard menu item.
(iii) A menu, under an index section that is separate from the
listing of standard menu items.
(iv) A menu insert.
(v) A table tent on the table.
(B) Notwithstanding subparagraph (A), a food facility that has a
drive-through area and uses a menu board to display or list standard
menu items at the point of sale shall, for purposes of the
drive-through area only, disclose the nutritional information in a
clear and conspicuous manner on a brochure that is available upon
request, and shall conspicuously display a notice at the point of
sale that reads: "NUTRITION INFORMATION IS AVAILABLE UPON REQUEST" or
other similar statement that indicates the disclosure of nutrition
information is available upon request.
(c) (1) On and after January 1, 2011, every food facility that
provides a menu shall disclose calorie content information for a
standard menu item next to the item on the menu in a size and
typeface that is clear and conspicuous.
(2) On and after January 1, 2011, every food facility that uses an
indoor menu board shall disclose calorie content information for a
standard menu item next to the item on the menu board in a size and
typeface that is clear and conspicuous.
(3) On and after January 1, 2011, every food facility that uses a
display tag as an alternative to a menu or menu board to describe a
standard menu item that is displayed for sale in a display case
within the food facility shall disclose calorie content information
for that standard menu item on the display tag for that item in a
size and typeface that is clear and conspicuous.
(4) On and after January 1, 2011, every food facility that has a
drive-through area and uses a menu board to display or list standard
menu items at the point of sale shall, for purposes of the
drive-through area only, disclose the nutritional information for
each standard menu item in a clear and conspicuous manner on a
brochure that is available upon request, and shall clearly and
conspicuously display a notice at the point of sale that reads:
"NUTRITION INFORMATION IS AVAILABLE UPON REQUEST" or other similar
statement that indicates the disclosure of nutrition information upon
request. If a food facility subject to this paragraph discloses
nutritional information in the manner described in subparagraph (B)
of paragraph (2) of subdivision (b), the food facility shall be
deemed to be in compliance with this paragraph.
(d) For purposes of subdivision (c), the disclosure of calorie
content information on a menu or menu board next to a standard menu
item that is a combination of at least two standard menu items on the
menu or menu board, shall, based upon all possible combinations for
that standard menu item, include both the minimum amount of calories
for the calorie count information and the maximum amount of calories
for the calorie count information. If there is only one possible
total amount of calories, then this total shall be disclosed.
(e) For purposes of subdivision (c), the disclosure of calorie
content information on a menu or menu board next to a standard menu
item that is not an appetizer or dessert, but is intended to serve
more than one individual, shall include both of the following:
(1) The number of individuals intended to be served by the
standard menu item.
(2) The calorie content information per individual serving. If the
standard menu item is a combination of at least two standard menu
items, this disclosure shall, based upon all possible combinations
for that standard menu item, include both the minimum amount of
calories for the calorie count information and the maximum amount of
calories. If there is only one possible total amount of calories,
then this total shall be disclosed.
(f) The nutritional information and calorie content information
required by this section shall be determined on a reasonable basis. A
reasonable basis determination of nutritional information and
calorie content information shall be required only once per standard
menu item, provided that portion size is reasonably consistent and
the food facility follows a standardized recipe and trains to a
consistent method of preparation.
(g) (1) Every brochure provided pursuant to this section shall
include the statement: "Recommended limits for a 2,000 calorie daily
diet are 20 grams of saturated fat and 2,300 milligrams of sodium."
(2) Menus and menu boards may include a disclaimer that indicates
that there may be variations in nutritional content across servings,
based on variations in overall size and quantities of ingredients,
and based on special ordering.
(h) This section shall not be construed to create or enhance any
claim, right of action, or civil liability that did not previously
exist under state law or limit any claim, right of action, or civil
liability that otherwise exists under state law. The only enforcement
mechanism of the section is the local enforcement agency.
(i) This section shall not be construed to preclude any food
facility from voluntarily providing nutritional information in
addition to the requirements of this section.
(j) To the extent consistent with federal law, this section, as
well as any other state law that regulates the disclosure of
nutritional information, is a matter of statewide concern and
occupies the whole field of regulation regarding the disclosure of
nutritional information by a food facility. No ordinance or
regulation of a local government shall regulate the dissemination of
nutritional information by a food facility. Any ordinance or
regulation that violates this prohibition is void and shall have no
force or effect.
(k) Commencing July 1, 2009, a food facility that violates this
section is guilty of an infraction, punishable by a fine of not less
than fifty dollars ($50) or more than five hundred dollars ($500),
which may be assessed by a local enforcement agency. However, a food
facility may not be found to violate this section more than once
during an inspection visit. Notwithstanding Section 114395, a
violation of this section is not a misdemeanor.
(l) If any provision of this section, or the application thereof,
is for any reason held invalid, ineffective, or unconstitutional by a
court of competent jurisdiction, the remainder of this section,
shall not be affected thereby, and to this end, the provisions of
this section are severable.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.