BILL ANALYSIS Ó
AB 1616
Page 1
Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
AB 1616 (Gatto) - As Amended: April 10, 2012
SUBJECT : Food safety: cottage food operations.
SUMMARY : Establishes the California Homemade Food Act to
regulate the production and sale of certain non-potentially
hazardous foods prepared in a home kitchen. Specifically, this
bill :
1)Makes various legislative findings and declarations related to
the growing movement in California to support community-based
food production, including the following:
a) Community-based food production, sometimes referred to
as "cottage food," "artisanal food," "slow food," "locally
based food," or "urban agriculture" movements, seek to
connect food to local communities, small businesses, and
environmental sustainability;
b) Increased opportunities for entrepreneur development
through microenterprises can help to supplement household
incomes, prevent poverty and hunger, and strengthen local
economies; and,
c) At least 25 other states have passed laws that allow
small business entrepreneurs to use their home kitchens to
prepare, for sale, foods that are not potentially
hazardous.
2)Defines various terms for purposes of this bill, including the
following:
a) "Cottage food operation" (CFO) means an enterprise
operated in a private home where cottage food products are
prepared or packaged to be sold directly to consumers,
including through the Internet or mail order, and to
in-state retail food facilities.
b) "Class 'A' CFO" means a CFO that is required to register
with the local environmental health department (LEHD) to
engage only in the direct sale of cottage food products, as
specified;
c) "Class 'B' CFO" means a CFO that is required to obtain a
permit from the LEHD, in accordance with the provisions of
this bill, to engage in the direct and indirect sale of
cottage food products, as specified;
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d) "Cottage food operator" means an individual who operates
a CFO in his or her private home and is the owner of the
CFO.
e) "Cottage food products" means foods that are prepared
for sale in the home kitchen of a person's primary private
home and are not potentially hazardous food, as defined in
this bill.
f) "Direct sale" means a transaction between a CFO operator
and a consumer, where the consumer is purchasing the
cottage food product directly from the cottage food
operation, including, but not limited to, holiday bazaars,
temporary events such as bake sales, farm stands, certified
farmers' markets, community-supported agriculture
subscriptions, food swaps, and sales occurring directly in
the home; and,
g) "Indirect sale" means an interaction between a CFO, a
third-party retailer, and a consumer, where the consumer is
purchasing cottage food products, made by the cottage food
operation, from a third-party retailer, including but not
limited to, sales made to retail shops and restaurants,
sales through an Internet Website operated by the cottage
food operation, and sales made through third-party-operated
Internet Websites.
3)Exempts a CFO from the existing definition of a food
processing establishment and from existing law requiring
processors of general food commodities to obtain a Processed
Food Registration (PFR) from the Department of Public Health
(DPH).
4)Authorizes DPH to assess a maximum civil penalty of $1,000 per
day against any person in violation of this bill.
5)Requires DPH to establish a list of permissible
non-potentially hazardous foods to be sold by a CFO,
including, but not limited to, baked goods without cream,
custard, or meat fillings; jams, jellies, preserves, and fruit
butter; certain candy; fruit pies or fruit/vegetable tamales
and empanadas; granola and other dried cereal; popcorn; waffle
cones and pizelles; nut mixes; certain chocolate-covered
nonperishable foods; roasted coffee and dried tea; dry baking
mixes; herb blends and dried mole paste; honey and sweet
sorghum syrup; dried fruit; dried pasta; rice cakes and rice
noodles; vinegar and mustard; and, kombucha (fermented tea).
Prohibits this list from being restricted by a local
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government.
6)Requires LEHDs to adopt regulations to implement this bill,
including, at least all of the following:
a) Procedures for a registration system for Class A CFOs,
along with the setting of fees, that includes a
self-certification checklist, as specified, and
notification to the CFO that the LEHD may recover the costs
related to inspections for violations of this bill;
b) Procedures for a permitting system for Class B CFOs,
along with the setting of fees, that includes an initial
inspection of the CFO premises before a permit is issued;
and,
c) Appropriate and reasonable sanitary procedures, as
specified.
7)Requires a CFO to prohibit the preparation, packaging, or
handling of cottage food products from occurring
simultaneously with any other domestic activities, as
specified.
8)Prohibits a CFO from allowing infants, small children, or pets
in the home kitchen during the preparation, packaging, or
handling of cottage food products.
9)Specifies that all food contact surfaces, equipment, and
utensils of a CFO used for the preparation, packaging, or
handling of any cottage food products must be washed, rinsed,
and sanitized before each use.
10)Requires all food preparation and food equipment storage
areas of a CFO to be maintained free of rodents and insects.
11)Requires a person of a CFO involved in the preparation and
packaging of cottage food products to not work in the home
kitchen when sick with a contagious illness; to wash his or
her hands before any food preparation and food packaging
activity; and, to confine preparation, packaging, handling, or
storage of cottage food products to only taking place within
the registered or permitted area.
12)Clarifies that water used during the preparation of cottage
food products, including water used for the washing,
sanitizing, and drying of any equipment, and used for the
washing, sanitizing, and drying of hands and arms, must meet
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existing potable drinking water standards, as specified.
13)Imposes existing federal packaging and labeling requirements
on any product that a CFO makes or packages and requires a CFO
to include a statement on its food package informing the
consumer that the product was prepared in a private home.
14)Prohibits a CFO from having more than one employee (not
including the CFO operator) and requires an employee to
complete a food handler training course approved by the LEHD
prior to commencing employment.
15)Imposes a $50,000 cap on a CFO's gross annual sales.
16)Subjects a CFO to various specified local government
regulations with respect to zoning, local ordinances, and use
permits.
17)Prohibits a Class A CFO from being subject to initial or
routine inspections by the LEHD and subjects a Class B CFO to
no more than one annual inspection by the LEHD.
18)Authorizes, for purposes of assessing compliance with this
bill, a LEHD official to inspect the registered area of a
private home where a Class A CFO is located, or the permitted
area of a private home where a Class B CFO is located, only if
the official has reason to suspect, on the basis of a consumer
complaint, that adulterated or otherwise unsafe food has been
produced by the CFO, or that the CFO has violated the
provisions of this bill.
19)Specifies that inspections conducted pursuant to 18) above
must be made at a reasonable time and during regular business
hours.
20)Authorizes a LEHD official to obtain a search warrant if
denied access to the area subject to inspection pursuant to
18) above.
21)Includes a CFO in the definition of a private home that is
exempt from regulation as a food facility under the California
Retail Food Code (CRFC).
22)Clarifies that the existing provision in the CRFC that bans
food stored or prepared in a private home from being used or
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sold in a food facility does not apply to food that is
prepared by a CFO that meets the requirements of this bill.
23)Clarifies that a CFO that meets the requirements of this bill
may also provide food in a hermetically sealed container under
the CRFC.
EXISTING LAW :
1)Establishes the Sherman Food, Drug and Cosmetic Law,
administered by DPH to regulate food, drugs, and cosmetics in
California.
2)Establishes the CRFC, administered by DPH, to govern all
aspects of retail food safety and sanitation in California and
makes LEHDs primarily responsible for enforcement through
local food safety inspection programs.
3)Defines a retail food facility as an operation that stores,
prepares, packages, serves, vends, or otherwise provides food
for human consumption at the retail level, including, but not
limited to, public and private school cafeterias, restricted
food service facilities (such as bed and breakfast inns and
agricultural homestays), licensed health care facilities,
commissaries, temporary food facilities, vending machines,
certified farmers markets, as specified, and, farm stands, as
specified.
4)Excludes from the definition of food facility a cooperative
arrangement, as specified, a private home, a church,
non-profit and for-profit entities under certain conditions,
premises set aside for wine tasting, as specified, a
commercial food processing plant, a child day care facility, a
community care facility, and a residential care facility for
the elderly.
5)Authorizes LEHDs to inspect food facilities, issue and suspend
permits, conduct hearings, take samples or other evidence,
impound food or equipment, and issue inspection reports.
6)Prohibits any person from engaging in the manufacture,
packing, or holding of any processed food in California unless
the person has a valid PFR from DPH.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
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committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill was
introduced in response to a May 2011 article in the Los
Angeles Times that profiled the bread making business of one
of the author's constituents. A short time after the article
appeared, the constituent's business was shut down by public
health officials. The author notes that 31 states have laws
that permit the in-home production and distribution of certain
homemade non-potentially hazardous food, such as breads,
tortillas, dry roasted nuts and legumes, empanadas, granola,
churros, jams, and jellies. The author maintains that the
national movement toward these "cottage foods" reflects a
public interest in increasing the availability of healthier
and locally processed foods in our communities. The author
states that allowing home-based food production in California
will enable micro-entrepreneurs to provide for their families
during these difficult economic times and contribute to the
state's economic recovery.
2)BACKGROUND . Cottage foods are classified as certain
non-potentially hazardous foods, such as bread, granola,
popcorn, and nuts, that do not require time and temperature
control for safety. According to the National Conference of
State Legislatures, 31 states have laws to regulate cottage
and home-based food production and it continues to be a
subject of legislative interest. Some state laws require a
CFO to obtain a license, the fee for which is typically
between $10 and $100 annually. Some states also require the
home kitchen to be inspected only if the LEHD has particular
reason to suspect any unsafe food is associated with the
kitchen. Most states do not conduct regular, routine
inspections for CFOs in the same manner as they would for
commercial kitchens. According to information from the
Sustainable Economies Law Center (SELC), most cottage food
laws only allow for the direct sale to consumers (such as at
farmer's markets) but some also allow for the sale of homemade
foods to grocery stores and restaurants. SELC notes that all
cottage foods must be sold within the state in which they are
produced because there are no cottage food laws at the federal
level and, therefore, interstate commerce is prohibited. This
bill currently requires LEHDs to develop implementing
regulations and fees to allow a cottage food producer to
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operate in the state, depending on if he or she engages in
direct-only sales or both direct and indirect sales. This
bill also currently allows a LEHD to inspect a CFO's home
kitchen only if the LEHD has received a consumer complaint or
has reason to suspect that the CFO has violated the
requirements of this bill.
3)PFR PROGRAM . A person or firm is required to be registered
with DPH to manufacture, process, or store general foods such
as bakery products, noodles, fruit juices, snacks, nuts, oils,
processed or packaged vegetables, and candy in California.
This PFR is a basic license issued to firms that allows them
to legally manufacture, package, label, or warehouse food in
California. The PFR provides evidence to a firm's customers
and regulatory agencies that the firm is licensed and
inspected by DPH. The PFR registration fee is calculated
based on the size of a firm's facility and the number of
employees. A firm is not required to obtain a PFR if it meets
certain conditions, including if it is a retail food facility
that sells food directly to consumers and has a valid permit
issued by a LEHD.
DPH inspects food processing facilities based on the risk
associated with the operation. Most facilities are inspected
annually, however some low risk facilities may be inspected
less frequently, and some very high risk facilities may be
inspected more frequently. DPH states that inspections are
generally not seasonal, may occur at any time of the year, are
conducted during normal business hours and are unannounced.
While this bill currently exempts CFOs from PFR requirements,
it does specify that a CFO that registers with a LEHD to
engage only in direct sales shall not be subject to initial or
routine inspections and requires a CFO that obtains a permit
from a LEHD to engage in both direct and indirect sales to be
subject to a maximum of one inspection by the LEHD annually.
In providing technical assistance, DPH notes that CFOs are
actually food processors that are not setting up as a
restaurant, cafeteria, caterer or other food service operation
that is typically regulated by LEHDs under the CRFC. DPH
states that this bill will currently enable these operations
to manufacture, package, and label foods on a small scale,
which is what DPH is responsible for overseeing under the PFR
program. DPH adds that there are a host of process controls,
processing methods and container/packaging safety issues that
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come into play with processed food that do not exist in
regular retail food facilities.
4)COTTAGE FOODS BEST PRACTICES . The Association of Food & Drug
Officials (AFDO), an international, non-profit, food
industry-focused organization aimed at streamlining and
simplifying federal, state, and local regulations, issued
regulatory guidance this month to government food safety
regulators for the oversight of CFOs. According to AFDO, the
regulatory guidance document is a consensus effort to set
standards for CFOs that preserve public health while still
allowing for economic opportunity. The guidance document
describes best practices for the CFO industry with regard to
definitions, pre-operation requirements, limitations on the
amount of sales and the types of food sold, and inspection and
labeling requirements. AFDO states that the document is
designed to allow food entrepreneurs to operate small food
businesses and produce a variety of food products that are low
risk from a food safety standpoint.
5)CRFC . According to the California Retail Food Safety
Coalition, a broad-based coalition of federal, state, and
local regulators and the retail food industry, the CRFC is
modeled after the federal Model Food Code, developed by the
federal Food and Drug Administration and updated every two
years to reflect the latest scientific and evidence-based
practices. LEHDs have primacy in the enforcement of the CRFC
and focus their food facility inspections on minimizing
food-borne illness risk factors and maximizing public health
interventions. CRFC inspection fees range from $150-$750 per
inspection, depending on the size of the facility.
6)SUPPORT . Supporters, representing cottage food producers and
advocates, state that this bill will provide CFOs with a lower
barrier of entry to make processed food and make it easier for
entrepreneurs working in non-profits or for-profits to
generate income and add vibrancy to our local communities and
the economy. They write that many of the regulations placed
on small food businesses are in many ways geared toward
industrial food production and create undue cost for small
food startups. Supporters state that this bill will provide
opportunities for small-scale farmers to sell value-added
products and provide communities with access to more local,
homemade, and specialty foods. Lastly, supporters add that
this bill will help eliminate hunger, food insecurity, and
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nutrition-related chronic disease by removing barriers to
small-scale food production and promoting development of a
healthy, sustainable community-based food system that
benefits food producers and purchasers alike.
7)CONCERNS . The California League of Food Processors states
that a robust inspection process is a critical component of a
solid food safety program in California and is concerned that
this bill will jeopardize consumer confidence in the food
processing industry by relaxing important food safety
inspection requirements for CFOs.
8)AUTHOR'S AMENDMENTS . In response to drafting and policy
concerns raised by Committee staff, the author intends to
accept the following as author's amendments:
a) Define CFOs under the category of "restricted food
service facility" subject to regulation under the CRFC,
including existing enforcement and fee authority;
b) Delete provisions requiring LEHDs to develop and adopt
implementing regulations and fees governing registration
and permit requirements for CFOs;
c) Require DPH to post the list of approved non-potentially
hazardous foods on its Internet Website; and,
d) Limit indirect sales to sales made to retail shops and
restaurants.
REGISTERED SUPPORT / OPPOSITION :
Support
49 Farms
American Federation of State, County and Municipal Employees,
AFL-CIO
Anne Hamersky Photography
Aunt Ems Urban Inn + Farm
Bay Localize
Berkeley Food Policy Council
Buried River Ranch
California Food and Justice Coalition
California State Grange
Center for Urban Education about Sustainable Agriculture
Central Coast Alliance United for a Sustainable Economy
City Grazing
CommunityGrows
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Cultivate SF
Design Ecology
East Bay Urban Agriculture Alliance
Eating Dirt
Ecology Center of San Francisco
Episcopal Diocese of California
Feel the Earth
ForageSF
Friends of Alemany Farm
From the Ground Up
Future Action Reclamation Mob
Garden for the Environment
Global Exchange
Green Earth Gardens
GrowCity
Grubly
Hayes Valley Farm
Heartbeets
How to Homestead
Ideation Incubator
Itty Bitty Farm in the City
La Cocina
Little City Gardens
Los Angeles Bread Bakers
Master Gardeners
Mission Community Market
Mission Vertical Farming
Oakland Food Policy Council
People Organized to Win Employment Rights
Pesticide Watch
Produce to the People
Proyecto Jardin
Rainbow Grocery
Recology
Saint Vincent de Paul Society
San Francisco Bee-Cause
San Francisco Green Schoolyard Alliance
San Francisco Landscapes
San Francisco Urban Agriculture Alliance
San Francisco Permaculture Guild
Slide Ranch
Sustainable Economies Law Center
Tenderloin People's Garden
The Free Farm
The Garden Community
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Whole Foods Northern California
Opposition
None on file.
Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097