BILL NUMBER: AB 688 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 24, 2011
AMENDED IN SENATE AUGUST 15, 2011
AMENDED IN SENATE JULY 12, 2011
AMENDED IN SENATE JUNE 23, 2011
INTRODUCED BY Assembly Member Pan
(Coauthor: Assembly Member Mitchell)
FEBRUARY 17, 2011
An act to add Section 114094.5 to, and to add Chapter
3.5 (commencing with Section 110286) to Part 5 of Division 104 of
, the Health and Safety Code, relating to food and drug
safety.
LEGISLATIVE COUNSEL'S DIGEST
AB 688, as amended, Pan. Food and drugs: sale.
The Sherman Food, Drug, and Cosmetic Law contains various
provisions regarding the contents, packaging, labeling, and
advertising of food, drugs, and cosmetics. The California Retail
Food Code provides for the regulation of health and sanitation
standards for retail food facilities, as defined, by the State
Department of Public Health. Under existing law, local health
agencies are primarily responsible for enforcing the California
Retail Food Code. A violation of any of these provisions is
punishable as a misdemeanor.
This bill would prohibit a retailer from selling or offering
for sale after the expiration date an over-the-counter drug, as
defined. The bill would also prohibit a retail food facility from
selling or offering for sale after the expiration or
"use by" date infant formula or baby food that is required
to have this date on its packaging pursuant to federal law.
It would also prohibit a retailer from selling after the expiration
or "use by" date an over-the-counter drug, as defined, that is
required to have this expiration date on its packaging pursuant to
that federal law. This bill would make a violation of its
provisions an infraction, punishable by a fine of not more than $10
per day, calculated as prescribed. This bill would also authorize the
department and local enforcement entities or
an enforcement agency, as specified, to assess administrative
penalties on a retailer who violates these provisions in the amount
of $10 per day for each item sold or offered for sale in
violation of these provisions, in addition to other penalties
authorized by law , to be deposited as specified .
By creating a new crime new crimes and
imposing additional duties on local officials , this bill would
create a state-mandated local program.
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 no reimbursement is required by this
act for a specified reason.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 3.5 (commencing with Section 110286) is added
to Part 5 of Division 104 of the Health and Safety Code, to read:
CHAPTER 3.5. EXPIRATION AND USE BY DATES
110286. (a) A retailer shall not sell or offer for sale
after the expiration or "use by" date infant formula
or baby food that is required to have this date on its packaging
pursuant to the federal act and federal regulations adopted pursuant
to the federal act, including, but not limited to, Section 107.20 of
Title 21 of the Code of Federal Regulations.
(b) A retailer shall not sell after the expiration or "use by"
date an over-the-counter drug.
(c) This section
shall not be construed to preclude any other action authorized by
law. date an over-the-counter drug.
(d)
(b) Notwithstanding Section 111825, any retailer who
violates this section is guilty of an infraction, punishable by a
fine of not more than ten dollars ($10) per day for each item sold
or offered for sale after the expiration or "use
by" date. The fine shall be calculated based upon the
number of days between the expiration or "use by" date and
the date of sale. The date of sale shall be established by evidence
of the proof of purchase, including, but not limited to, a sales
receipt. past the expiration date that the product is
found being offered for sale or sold.
(e)
(c) The department and local enforcement
entities may assess administrative penalties on a retailer
who violates this section in the amount of ten dollars ($10) per day
for each item sold in addition to other penalties authorized by law.
(1) Moneys from penalties collected pursuant to this subdivision
by the department shall be deposited into the General Fund.
(2) Moneys from penalties collected pursuant to this subdivision
by a local enforcement entity shall be deposited into the general
fund of the local jurisdiction.
(f)
(d) For purposes of this section, the
following definitions shall apply:
(1) "Baby food" shall have the meaning given to "baby foods" in
paragraph (c) of Section 407.81 of Title 40 of the Code of Federal
Regulations.
(2) "Infant formula" shall have the meaning given in subdivision
(z) of Section 321 of Title 21 of the United States Code.
(3)
"Over-the-counter "over-the-counter drug" means
a nonprescription drug regulated by the federal Food and Drug
Administration that is required to have an expiration date on its
packaging pursuant to the federal act and federal regulations adopted
pursuant to the federal act, including, but not limited to, Section
211.137 of Title 21 of the Code of Federal Regulations.
SEC. 2. It is the intent of the Legislature in
adding Chapter 3.5 (commencing with Section 110286) to the Sherman
Food, Drug, and Cosmetic Act (Part 5 (commencing with Section 109875)
of Division 104 of the Health and Safety Code) that the department
and local enforcement entities rely on existing enforcement authority
and procedures to enforce this section.
SEC. 3. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because 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.
SEC. 2. Section 114094.5 is added to the
Health and Safety Code , to read:
114094.5. (a) A retail food facility shall not sell or offer for
sale after the "use by" date, infant formula or baby food that is
required to have this date on its packaging pursuant to the federal
act, as defined in Section 1009930, and federal regulations adopted
pursuant to the federal act, including, but not limited to, Section
107.20 of Title 21 of the Code of Federal Regulations.
(b) Notwithstanding Section 114395, any retail food facility that
violates this section is guilty of an infraction, punishable by a
fine of not more than ten dollars ($10) per day for each item sold or
offered for sale after the "use by" date. The fine shall be
calculated based upon the number of days past the "use by" date that
the product is found being offered for sale or sold.
(c) An enforcement agency may assess administrative penalties on a
retail food facility that violates this section in the amount of ten
dollars ($10) per day for each item sold or offered for sale, in
addition to other penalties authorized by law.
(d) For purposes of this section, the following definitions shall
apply:
(1) "Baby food" shall have the meaning given to "baby foods" in
paragraph (c) of Section 407.81 of Title 40 of the Code of Federal
Regulations.
(2) "Infant formula" shall have the meaning given in subdivision
(z) of Section 321 of Title 21 of the United States Code.
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.