BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K. Alquist, Chair
BILL NO: SB 888
S
AUTHOR: Yee
B
AMENDED: April 12, 2010
HEARING DATE: April 21, 2010
8
CONSULTANT:
8
Tadeo/
8
SUBJECT
Food safety: Asian rice based noodles
SUMMARY
Requires manufacturers of Asian rice based noodles, as
defined, to place a label on the product indicating the
date and time of manufacture and include a statement that
the noodles must be consumed within eight hours of
manufacture. Allows a food facility to sell Asian rice
based noodles that have been at room temperature for no
more than eight hours.
CHANGES TO EXISTING LAW
Existing law:
Requires the Department of Public Health (DPH) to
administer and enforce the Sherman Food, Drug, and Cosmetic
Law (Sherman Law) to regulate the contents, packaging,
labeling, and advertising of food, drugs, and cosmetics. A
violation of the Sherman Law is a misdemeanor.
Requires DPH to administer the California Retail Food Code
(Cal Code) to regulate the manufacture, processing,
distribution and sale of food by a food facility. The
primary responsibility of Cal Code enforcement lies with
local health agencies. A violation of any provision of
CalCode is a misdemeanor.
Continued---
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Defines a food facility as an operation that stores,
prepares, packages, serves, vends, or otherwise provides
food for human consumption at the retail level.
Defines a potentially hazardous food as a food that
requires time or temperature control to limit pathogenic
micro-organism growth or toxin formation that may cause
food infections or food intoxications; or a food supporting
the growth or toxin production of Clostridium botulinum. A
potentially hazardous food includes a food of plant origin
that is heat treated.
Excludes specified foods from the potentially hazardous
food definition, and states the scientific conditions under
which they are excluded, as specified.
Permits Korean rice cakes, as defined, to be sold if they
are held at room temperature for no more than 24 hours, if
they have been cooked in a specified way, and contain no
animal products.
This bill:
Defines an Asian rice based noodle as a confection that
contains rice powder, water, wheat starch, and vegetable
cooking oil, that cannot include any animal fats or any
other products derived from animals.
States that the preparation of an Asian rice based noodle
is by a traditional method that includes cooking by steam
at not less than 130 degrees Fahrenheit, for not less than
four minutes.
Requires manufacturers of Asian rice based noodles to label
the noodles to indicate the date and time of manufacture
and include a statement that the noodles must be consumed
within eight hours of manufacture.
Allows a food facility to sell Asian rice based noodles
that have been at room temperature for no more than eight
hours.
Requires, at the end of the operating day, Asian rice based
noodles that have been at room temperature for more than
eight hours to be destroyed in a manner approved by the
enforcement agency.
STAFF ANALYSIS OF SENATE BILL 888 (Yee) Page
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FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
According to the author, California Asian rice based noodle
makers are shutting doors and eliminating jobs because of a
questionable interpretation of state law that requires the
noodles to be refrigerated, threatening a staple of Asian
cuisine.
The author states that while state regulations require
specified food to be held at or below 41 degrees
Fahrenheit, or kept at or above 140 degrees Fahrenheit,
rice noodles are meant to be kept at room temperature for
up to eight hours, and changes in temperature ruin the
noodles. The author adds that any change in production
would change a standard used by Asian communities for
thousands of years.
The author further argues that independent lab tests,
coupled with generations of Asian rice based noodle
consumption, demonstrate that they are safe and that state
laws should allow for their continued production. The
author further argues that lab tests provided prove Asian
rice noodles already fall under existing exemptions in the
law.
California Retail Food Code (Cal Code) and potentially
hazardous foods
Cal Code provides for uniform statewide health and
sanitation standards for food facilities to assure that
food consumed by individuals will be pure, safe, and
unadulterated. Primary responsibility of Cal Code
enforcement lies with local health agencies. Upon findings
of Cal Code violations, an enforcement officer may, among
other things, impound food that is found or suspected to be
contaminated or adulterated.
Under Cal Code, a potentially hazardous food includes, but
is not limited to, a food that has a pH level of 4.6 or
below, and a food that has a water activity value of 0.85
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or less under standard conditions.
Under Cal Code, a potentially hazardous food must be held
at or below 41 degrees Fahrenheit or at or above 135
degrees Fahrenheit at all times, with certain exceptions.
Cal Code requires the to be cooked and served, served if
ready-to-eat, or discarded within four hours after the time
the food is removed from temperature control. Food in
unmarked containers or packages must be discarded after the
four-hour time limit.
Cal Code excludes a food from the potentially hazardous
food definition that has been shown by appropriate
microbial challenge studies approved by the enforcement
agency not to support the rapid and progressive growth of
infectious or toxigenic microorganisms that may cause food
infections. Cal Code also excludes a food from the
potentially hazardous food definition that does not support
the rapid and progressive growth of infectious or toxigenic
micro-organisms, even though the food may contain an
infectious or toxigenic micro-organism or chemical or
physical contaminant at a level sufficient to cause
illness.
If time only, rather than time in conjunction with
temperature, is used as the public health control for
potentially hazardous food, the food must be marked or
otherwise identified to indicate the time that is four
hours past the point in time when the food is removed from
temperature control; and the food must be cooked and
served, served if ready-to-eat, or discarded within four
hours from the point in time when the food is removed from
temperature control.
Legislative Counsel Opinion
The author of SB 888 asked the Legislative Counsel Bureau
to discuss the criteria under which Asian rice noodles may
be classified as a potentially hazardous food under the
Sherman Law and Cal Code. In response, the Legislative
Counsel Bureau reports that both the Sherman Law and the
Cal Code regulate the sale of potentially hazardous food,
but define "food " and "potentially hazardous food"
differently. The Legislative Counsel Bureau contends that,
to the extent that Asian rice noodles meet the definition
of potentially hazardous food within both of these sections
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of law, would be subject to the requirements and conditions
placed upon potentially hazardous food by each of these
laws.
However, to the extent that Asian rice noodles may, in a
given circumstance, fall within any of the ready-to-eat
definitions, Asian noodles are a ready-to-eat food.
Potentially hazardous foods that are ready to eat and are
displayed or held for immediate consumption may,
alternatively, be regulated under the Cal Code by time
controls, rather than temperature requirements.
Potentially hazardous foods that are being transported are
subject under the Cal Code to alternative temperature
requirements.
Testing of potentially hazardous foods
A laboratory test for microbial activity in Asian rice
noodles was conducted in July, 2009 by Anresco
laboratories. Results of the test concluded that the
product appeared to be stable within an eight-hour period
due to very little microbiological activity, and that the
absence of E.coli, Salmonella and Listeria indicates that
the product is not a health hazard after eight hours at
room temperature.
The California Association of Environmental Health
Administrators (CAEHA), which represents the 62 local
environmental health agencies charged with local
enforcement, argues that the random sample of one batch of
noodles used by Anesco Laboratories did not follow a
protocol approved or recognized by federal, state and local
health officials as a valid pathogen inhibition and
inactivation study. In March, 2010, CAEHA solicited the
assistance of Dr. Linda Harris, Associate Director of the
Western Institute for Food Safety and Security in the
Department of Food Science and Technology at the University
of California, Davis to design a challenge study evaluation
for an Asian rice based noodle challenge study that would
be recognized by these officials.
AB 2214 (Tran) Chapter 160, Statutes of 2006 (The Asian
Traditional Food Act) directed DPH to conduct a study of
the sale and consumption of three traditional Asian foods -
Banh Tet, Banh Chung, and Moon Cakes - after enforcement
actions by local jurisdictions to require refrigeration of
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these products resulted in complaints from the
manufacturers and the community that the products are
unpalatable after refrigeration.
The study states that, each year, new and modified food
products are developed in the United States, with many of
these meeting the statutory definition of potentially
hazardous. The study reports that no regulatory agency has
the resources to conduct necessary safety studies on these
products seeking to be exempted from time and/or
temperature controls enacted to reduce the risk to
consumers. The study adds that anecdotal reports that
"these products have not been associated with an outbreak"
are not sufficient to bypass existing scientifically-based
requirements and safety studies for exemptions of time and
temperature controls are the responsibility of the
manufacturers.
The study concluded that microbial challenge studies, which
use accepted industry and academic methods to introduce
likely pathogens onto foods and monitor their ability to
survive, grow, and/or produce toxins at several points in
time, are considered the gold standard for assessing
whether food products are classified as a potentially
hazardous food.
However, because microbial challenge studies would have
required significant resources to complete and no funding
was provided to support the study, the University of
California Laboratory for Research in Food Preservation,
which was contacted to conduct the evaluation, used
established microbiological models to estimate the ability
of selected pathogens and toxins to survive or grow in
these products.
Korean Rice Cakes
SB 888 is similar to AB 187 (Liu), Chapter 204, Statutes of
2001, in which the author argued that forcing Korean rice
cake bakers to refrigerate their rice cakes after
preparation made the cakes harden and quickly decline in
both marketability and desirability. Laboratory work was
provided by the author that found that the water level of
Korean rice cakes was either below or marginally above the
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water level which exempts food products from the
definition of potentially hazardous food. Additional
background information prepared by the Irvine Analytical
Laboratories stated that 24 hours, which is the standard
time that Korean rice cakes are kept at room temperature,
was not sufficient time for the product to grow significant
contamination. Salmonella, which has the shortest
incubation, takes 72 hours to grow.
AB 187 (Liu), Chapter 204, Statutes of 2001, permits food
establishments to sell Korean rice cakes, as defined, that
have been at room temperature for less than 24 hours, and
requires manufacturers of Korean rice cakes to provide a
date stamp indicating the date of manufacture and a warning
label that the rice cake must be consumed within one day of
manufacture.
Prior legislation
SB 144 (Runner), Chapter 23, Statutes of 2006, repeals and
reenacts the California Uniformed Retail Food Facilities
Law as the California Retail Food Code, including
potentially hazardous foods, effective July 1, 2007.
AB 2214 (Tran), Chapter 160, Statutes of 2006, the Asian
Traditional Food Act, requires the DPH to conduct a study
on the effects of retail food facility health and
sanitation standards on the sale and consumption of
traditional Asian food.
AB 2763 (Diaz) 2004 would have allowed temporary food
facilities to keep sushi, teriyaki chicken, and manju at
room temperature for up to 24 hours, and would have
required that these foods be labeled with the time of
manufacture. This bill failed passage in the Senate Health
and Human Services Committee.
AB 187 (Liu), Chapter 204, Statutes of 2001, permits food
establishments to sell Korean rice cakes, as defined, that
have been at room temperature for less than 24 hours, and
requires manufacturers of Korean rice cakes to provide a
date stamp indicating the date of manufacture and a warning
label that the rice cake must be consumed within one day of
manufacture.
Arguments in support
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The San Francisco Department of Public Health (SFDPH),
states that Asian rice based noodles are frequently
prepared and consumed in San Francisco and that an outbreak
of food-borne illness traced back to rice noodles has never
been recorded or observed. SFDPH adds that it is not aware
of any such incident elsewhere, and that requiring the
labeling, as defined, of Asian rice noodles would add an
additional measure of safety and protection for use of this
traditional food product
Proponents argue that Asian rice noodles have been
manufactured for thousands of years in Asia and for over
150 years here in California and that independent lab
tests, coupled with generations of rice noodle consumption
demonstrate that they are safe and state laws should allow
for their continued production.
Proponents point out that current state law requiring the
noodles to be refrigerated threatens a staple of Asian
cuisine because it changes the texture of the noodles,
makes them stiff, and no longer fresh.
Sincere Orient Commercial Corporation supports SB 888, but
expresses concern that fresh dry noodles may be categorized
as Asian rice noodles by this bill and, as such, be
required to be destroyed after eight hours. Sincere Orient
Commercial Corporation argues that FDA approved lab tests
conducted on this product prove safety beyond eight hours.
Arguments in opposition
According to CAEHA, because the emetic toxin Bacillus
cereus and other harmful bacteria grow rapidly in many rice
products, federal, state and local health officials are
particularity mindful of the need for adequate time and
temperature controls over this rice food product. CAEHA
further states that a recent outbreak food-borne illness
from rice noodles reported by the Washington State
Department of Health has highlighted its vigilance over
these products. CAEHA adds that SB 888 changes the
underlying presumption that the producer or seller of food
ensure, and demonstrate where necessary, that their food
product is safe and instead places the burden on the food
safety agencies to demonstrate that the food is not safe.
CAEHA argues that the recent evaluation solicited from Dr.
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Linda Harris has not been used to test Asian rice noodles
and that SB 888 is being used to circumvent this
science-based food safety evaluation process. CAEHA
further states that the majority of the rice noodle
manufacturers in California is currently operating in
compliance with state law and has been doing so for
decades.
Finally, CAEHA states that the catalyst for SB 888 was a
routine DPH inspection of a rice manufacturing facility
under the Sherman Law, not a retail food inspection
conducted by local environmental health officials under Cal
Code.
COMMENTS
1. Asian rice noodles may be defined in more than one way
under existing law.
Asian rice noodles are both considered a potentially
hazardous food, which would require immediate refrigeration
and a ready-to-eat food, which would require refrigeration
after four hours. Existing law allows certain potentially
hazardous foods to use a time only,
rather than time in conjunction with temperature, as the
public health control. These foods can include a
potentially hazardous food that will be cooked. These foods
are required to be marked with the time of manufacture and
cooked or eaten before four hours. Asian rice based noodles
are steam prepared when manufactured, but not to a high
enough temperature to ensure safety, but are meant to be
further prepared and cooked at a later time. A suggested
amendment to provide a consistent standard for Asian rice
based noodles would be to require the statement on the
label to state that the noodles must be consumed or further
prepared or cooked within four hours of manufacture, and to
allow a food facility to sell Asian rice noodles that have
been at room temperature for no more than four hours.
2.Additional testing of Asian rice noodles for safety.
The challenge study technique is approved by law to test
the rapid and progressive growth of infectious or toxigenic
microorganisms that may cause food infections, but it is
not clear that it is the only test that may be established.
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The author may wish to assist the Asian rice based noodle
industry in identifying funds to conduct a study on the
sale, consumption and safety of Asian rice noodles based on
not only the challenge study, but established
microbiological models to estimate the ability of selected
pathogens and toxins to survive or grow in these products
similar to the one conducted on foods in the Asian
Traditional Food Act.
3. Technical amendments. The author may wish to consider
providing additional definitions that make the distinction
between dry fresh Asian rice noodles and wet fresh Asian
rice noodles.
Additional suggested amendment:
Page 2, line 13:
ingredient s
POSITIONS
Support: Board of Supervisors Member, San Mateo County
Board of Supervisors Member, Santa Clara
County
California Small Business Association
California Rice Industry Association
Hocean Food Corporation
Koi Palace Restaurant
Lam Hoa Thuan Restaurant
Lucky K.T. Co Inc.
Organization of Chinese Americans, Inc.,
Silicon Valley Chapter
Osha Thai Caf?
Osha Thai Noodle Caf?
Osha Thai Restaurant
Osha Thai Restaurant and Bar
San Francisco Board of Supervisors
San Francisco Department of Public Health
Sincere Orient Food Company
Southern California TEO-CHEW Association
Sun Mei Restaurant
Vice Mayor, Cupertino
Yan Can Cook Production, PBS, Martin Yan,
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host
90 individual consumers
Oppose: California Association of Environmental Health
Administrators