BILL ANALYSIS
AB 1512
Page 1
Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
AB 1512 (Lieu) - As Amended: April 15, 2009
SUBJECT : Food and drugs: sale.
SUMMARY : Prohibits a retailer from selling or permitting to be
sold infant formula, baby food, and over-the-counter (OTC)
medications beyond the expiration date indicated on the
product's packaging and imposes a $10 fine per item per day in
violation. Specifically, this bill :
1)Prohibits a retailer from selling or permitting to be sold
after the "use by" date infant formula or baby food that is
required to have this date on its packaging pursuant to
federal regulations.
2)Prohibits a retailer from selling or permitting to be sold
after the expiration date an OTC human drug that is required
to have this expiration date on its packaging pursuant to
federal regulations.
3)Makes any person who violates this bill guilty of an
infraction, punishable by a maximum fine of $10 per day for
each item sold or permitted to be sold after the expiration or
"use by" date.
EXISTING LAW establishes the Sherman Food, Drug, and Cosmetic
Law, administered by the Department of Public Health (DPH), to
regulate the contents, packaging, labeling, and advertising of
food, drugs, and cosmetics in California.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . The author states that current law does
not prohibit the sale of infant formula, baby food, and OTC
medications beyond the "use by" or expiration dates indicated
on their packaging, but federal law requires these dates to be
disclosed on their labels. The author notes that expiration
and "use by" dates are important in keeping consumers safe and
AB 1512
Page 2
should be regulated at the state level. The author asserts
that retailers that stock expired items not only violate state
laws against false advertising and unfair business practices,
they endanger the well-being of California's consumers. The
author maintains that this bill will make certain that the
health and safety of California consumers are protected by
prohibiting and penalizing the sale of expired infant formula,
baby food, and OTC medications.
2)BACKGROUND . According to information provided by the author,
this bill arises from a March 2008 undercover shopping
operation in which state investigators with the Attorney
General's (AG) office found 48 expired products on the shelves
of 26 CVS Pharmacies in Los Angeles, Orange, and San Diego
counties. Some of the expired products, which included baby
formula, toddler food, and over-the-counter medications, were
between four and six months old. Investigators also
discovered expired food products including milk and eggs. Some
of the products' "sell by" dates were hidden with price tags
or other store stickers. The investigation was launched after
the AG's office received consumer reports about expired
products on store shelves in Southern California. As a result
of the investigation, the AG stated that CVS Pharmacy's
practice of stocking expired items on its stores' shelves
falsely implied that the products met federal standards and
the AG called on CVS Pharmacy to change its policies to ensure
that sales of expired products would not occur in the future.
3)FEDERAL DATING REGULATIONS . Federal regulations require a
"use-by" date on the product label of infant formula and the
varieties of baby food under inspection by the federal Food
and Drug Administration (FDA). If consumed by that date, the
formula or food must not contain less than the quantity of
each nutrient as described on the label. Formula must
maintain an acceptable quality to pass through an ordinary
bottle nipple. If stored too long, formula can separate and
clog the nipple. Dating of baby food is for quality as well
as for nutrient retention. The "use-by" date is selected by
the manufacturer, packer, or distributor of the product on the
basis of product analysis throughout its shelf life; tests;
or, other information. It is also based on the conditions of
handling, storage, preparation, and use printed on the label.
The FDA began requiring expiration dates on drugs in 1979 in
AB 1512
Page 3
order to set uniform testing and reporting guidelines.
Federal regulations require a drug product to bear an
appropriate expiration date as determined by stability testing
that analyzes the capacity of the drug to maintain its
identity, strength, quality, and purity for the period of
shelf life that the manufacturer picks. Expiration dates are
also required to be related to any storage conditions
specified on the label. Homeopathic drug products and new
drug products for investigational use are exempt from federal
regulations governing expiration dating.
4)PRODUCT DATING IN CALIFORNIA . According to the Food and Drug
Branch (FDB) of DPH, there are only a few products that
require "sell by" or "expiration dates" in California. Dairy
products have open dating requirements enforced by the U.S.
Department of Agriculture and the California Department of
Agriculture. Infant formula and baby foods are required to
bear an expiration date to ensure full nutritional value.
Even though the majority of foods do not require expiration or
"sell by" dates, most consumers expect some way to determine
the age of a product.
FDB indicates that there are two types of dating on food
packaging, open dating and code dating. In open dating, dates
are provided alphabetically, such as "July 10" or numerically,
such as "7-10." Open dating includes "pull date," "quality
assurance or freshness date," "pack date," and "expiration
date." Manufacturers have the pull date, quality assurance
date, or pack date on labels to inform retailers and consumers
when the product was made, how long the product should be
offered for sale, or how long the products will be of optimum
quality. The expiration date is the date before which a
product should be eaten. Open dating is recommended for all
foods that are readily perishable, such as meat, poultry,
eggs, and dairy products. In code dating, the information is
coded in letters, numbers, and symbols known only to the
manufacturer. Code dating enables the manufacturer to convey
a relatively large amount of information, such as production
code and date and location of production or packaging, with a
few small letters, numbers, and symbols. In the case of a
recall, it makes it easier to quickly identify and track down
the product and remove it from the market. Code dating
typically appears on shelf-stable products such as cans and
boxes of food.
AB 1512
Page 4
5)SUPPORT . The sponsor of this bill, Consumer Federation of
California (CFC), states that during tough economic times,
consumers deserve to purchase products that are safe and
effective for themselves and their families. CFC asserts that
requiring the removal of specific products that have exceeded
their nutritional or safety effectiveness is a simple practice
that retailers can employ to protect their customers. The
International Formula Council notes in support that infant
formula products sold past their "sell by" date may experience
nutrient and other losses that could impact the product's
safety and potentially threaten an infant's health. The
Consumer Attorneys of California supports this bill because it
levies fines against retailers who sell products that have
already expired and serves to protect the well-being of
California consumers. Various labor groups write in support
that this bill will act as an incentive for retailers to
remove expired products from their shelves and protect parents
and other consumers from purchasing useless or potentially
harmful products in the future.
6)OPPOSITION . The California Grocers Association objects to the
punitive and arbitrary fines in this bill that would be
applied even when innocent mistakes are made and opposes this
bill because it inappropriately targets responsible
businesses.
7)TECHNICAL AMENDMENT . Federal regulations governing expiration
dating of OTC drugs are found in Section 211.137 of Title 21
of the Code of Federal Regulations. This bill should be
amended accordingly in line 17 to correctly reference this
section.
REGISTERED SUPPORT / OPPOSITION :
Support
Consumer Federation of California (sponsor)
Amalgamated Transit Union
American Federation of State, County and Municipal Employees,
AFL-CIO
California Conference of Machinists
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California
International Formula Council
AB 1512
Page 5
International Longshore and Warehouse Union
United Food and Commercial Workers Union, Western States Council
UNITE HERE!
Opposition
California Grocers Association
Analysis Prepared by : Cassie Rafanan / HEALTH / (916)
319-2097