BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1512|
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THIRD READING
Bill No: AB 1512
Author: Lieu (D), et al
Amended: 7/15/09 in Senate
Vote: 21
SENATE HEALTH COMMITTEE : 9-0, 7/8/09
AYES: Alquist, Aanestad, Cedillo, DeSaulnier, Leno,
Maldonado, Negrete McLeod, Pavley, Wolk
NO VOTE RECORDED: Strickland, Cox
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 48-29, 5/28/09 - See last page for vote
SUBJECT : Food and drugs: sale
SOURCE : Consumer Federation of California
DIGEST : This bill prohibits a retailer from selling, or
permitting to be sold, infant formula, baby food, and
drugs, as defined, beyond the expiration date indicated on
the product's packaging.
ANALYSIS : Existing federal law, under the Food, Drug and
Cosmetic Act, provides for the regulation of food, drugs,
and cosmetics by the U.S. Food and Drug Administration
(FDA). Existing federal law requires expiration dates on
drugs, as defined, and requires a "use-by" date on the
product label of infant formula and the varieties of baby
food under inspection by the FDA.
CONTINUED
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Existing state law establishes the Sherman Food, Drug, and
Cosmetic Law (Sherman Act), administered by the Department
of Public Health (DPH), to regulate the contents,
packaging, labeling, and advertising of food, drugs, and
cosmetics in California.
Existing state law defines a drug as any article recognized
in an official compendium; or any article used or intended
for use in the diagnosis, cure, mitigation, treatment, or
prevention of disease in human beings or any other animal;
or any article other than food, that is used or intended to
affect the structure or any function of the body of human
beings or any other animal; or any article used or in
tended for use as a component of any article in the first
three.
Existing state law allows any authorized agent of DPH to,
upon presenting appropriate credentials and at a reasonable
time, enter any factory, warehouse, or establishment in
which any food, drug, device, or cosmetic is manufactured,
packed, or held.
Existing state law allows DPH, upon the request of a health
officer, to authorize the local health department of a
city, county, city and county, or local health district to
enforce the provisions of Sherman and its regulations that
pertain to retail food establishments, as defined, if DPH
determines that the local health department has sufficient
personnel with adequate training to do so, and requires
that the enforcement be limited to the area under the
jurisdiction of the local health department.
Existing state law provides that any person who violates
any provision of the Sherman Act or its regulations shall,
if convicted, be subject to imprisonment for not more than
one year in the county jail or a fine of not more than
$1,000, or both the imprisonment and fine. Existing law
provides for higher penalties for other specified
violations of the Sherman Act.
This bill 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
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pursuant to the federal Food, Drug, and Cosmetic Act and
its regulations.
This bill prohibits a retailer from selling, or permitting
to be sold, after the expiration date, an over the counter
drug that is required to have this expiration date on its
packaging pursuant to the Food, Drug and Cosmetic Act and
its regulations.
This bill provides that, in lieu of other penalties, any
person who violates these prohibitions is 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. Monies collected from the
fines shall be deposited in the General Fund. Fines
collected by local jurisdictions shall be deposited in the
General Fund of the local jurisdiction.
Background
Attorney General's investigation and settlement agreement
with CVS . In response to consumer reports about expired
products on store shelves in Southern California, the
Attorney General (AG) launched an undercover shopping
operation in March 2008, which found 48 expired products on
the shelves of 26 CVS pharmacies in Los Angeles, Orange,
and San Diego Counties. The investigators found that some
of the expired products, which included baby formula,
toddler food, and over-the-counter medications, were
between four and six months old. (Expired dairy and eggs
were also found.) The investigation noted that some of the
products' "sell by" dates were hidden with price tags or
other store stickers. 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 called on the
pharmacy to change its policies to ensure that sales of
expired products would not occur in the future.
On June 10th, the AG and CVS filed a settlement agreement,
under a stipulation for entry of final judgment, in
Superior Court. The judgment states that CVS is
permanently enjoined and restrained from selling or
offering to sell expired products to any person at a CVS
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store in California, among other things. As a result, CVS
agreed to comply with several terms and requirements,
including: implementation, review, or revision of written
policies regarding appropriate practices to provide that
specified items (infant formula, baby food, eggs, dairy
products, and over-the-counter drugs) are not sold past
their best-by or expiration dates; reviewing and /or
revising its expired products policies and training
materials, including policies and contracts with
third-party providers; disseminating its expired products
policies to designated front-store employees, as specified,
and requiring the completion and repetition of training
regarding such policies; requiring certification of receipt
of policies and training; requiring stores to check
expiration or best-by dates of various categories of
specified products at least twice a month; implementing a
consumer coupon program related to finding expired products
in a store; requiring prominent posting of notices in the
aisles where specified products are offered for sale; among
other requirements.
As part of the agreement, CVS was ordered to pay $487,500
to the Unfair Competition Law Fund, and a similar amount in
attorney's fees and costs.
Federal law and regulations - "use-by" dates . According to
the Food Safety and Inspection Service (FSIS) of the U.S.
Department of Agriculture, except for infant formula and
some baby food, product dating is not generally required by
federal 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 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, test, or other information. It
is also based on the conditions of handling, storage,
preparation, and use printed on the label. FSIS states
that baby formula and baby food should not be bought or
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used after its "use-by" date.
The FDA began requiring expiration dates on drugs in 1979
in 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.
Product dating in California . According to the Food and
Drug Branch (FDB) of DPH, only a few products require "sell
by" dates or "expiration dates" in California. State law
requires dairy products to have "open dating" (which
includes a pack date, expiration date, or quality
assurance/freshness date) requirements. 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.
Related Legislation
SB 550 (Florez) requires a grocery store that uses a
point-of-sale system to ensure that when a recalled product
is scanned, the point-of-sale system will notify the
employee and customer that the product being purchased is
subject to a recall. (Pending in the Assembly Business and
Professions Committee.)
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/19/09)
Consumer Federation of California (source)
Consumer Federation of California (sponsor)
Amalgamated Transit Union
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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, IFPTE L.20, IFPTE
L. 21
International Formula Council
International Longshore and Warehouse Union
UNITE HERE!
United Food and Commercial Workers Union, Western States
Council
OPPOSITION : (Verified 8/19/09)
California Grocers Association
California Retailers Association
ARGUMENTS IN 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 writes 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.
ARGUMENTS IN OPPOSITION : The California Grocers
Association (CGA) 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
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inappropriately targets responsible businesses, rather than
bad actors, such as organized retail crime rings that steal
quantities of infant formula, drugs, and a variety of other
products and make no effort to ensure that products sold
are safe.
The California Retailers Association (CRA) objects to the
legislation, because it believes the bill does not require
any substantiation before a penalty can be assessed on a
retailer, such as a receipt. CRA believes the bill would
subject retailers to civil penalties without any evidence
that a consumer purchased the product at their store or
that the product was past the expiration date at the time
of sale. Additionally, CRA believes that the bill is
silent on whom the penalty would be assessed and when the
per-day penalty begins. Lastly, CRA has concerns that this
measure conflicts with federal prohibitions that prevent
the monetary compensation for Women, Infant and Children's
(WIC) Program participants who receive expired products.
CRA notes that federal regulations require retailers to
provide an exchange of the exact item to WIC participants
who receive expired or spoiled goods and expressly prohibit
retailers from providing WIC participants cash, credit, and
refunds.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fong, Fuentes, Furutani, Hall, Hayashi, Hernandez,
Hill, Huffman, Jones, Krekorian, Lieu, Bonnie Lowenthal,
Ma, Mendoza, Monning, Nava, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Skinner,
Solorio, Swanson, Torlakson, Torres, Torrico, Yamada,
Bass
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Huber, Jeffries, Knight, Logue, Miller, Niello,
Nielsen, Silva, Smyth, Audra Strickland, Tran, Villines
NO VOTE RECORDED: Galgiani, Nestande, Saldana
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JJA:cm 8/19/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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