BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 1138
AUTHOR: Padilla
INTRODUCED: February 20, 2014
HEARING DATE: April 9, 2014
CONSULTANT: Marchand
SUBJECT : Fish and shellfish: labeling.
SUMMARY : Requires the label of fish or shellfish that is
offered for sale at wholesale or retail to clearly identify the
species of fish or shellfish by its common name.
Existing federal law:
1.Establishes the Federal Food, Drug, and Cosmetic Act (FFDCA),
enforced by the federal Food and Drug Administration (FDA), to
regulate the safety of food, drugs, and cosmetics.
2.Deems food misbranded if, among other reasons, its labeling is
false or misleading in any particular, if it is offered for
sale under the name of another food, or it is an imitation of
another food without being labeled as imitation.
3.Establishes Country of Origin Labeling (COOL) to require
retailers to notify their customers with information regarding
the source of certain foods.
Existing state law:
1.Establishes the Sherman Food, Drug, and Cosmetic Law,
administered by the California Department of Public Health
(CDPH), to regulate the contents, packaging, labeling, and
advertising of food, drugs, and cosmetics.
2.Deems any food misbranded if its labeling is false or
misleading in any particular. Deems any food misbranded if it
is offered for sale under the name of another food.
3.Deems any food for which no standard of identity exists as
misbranded unless it bears a label clearly stating the common
or usual name of the food.
4.Requires any label of any retail cut of beef, veal, lamb, or
pork held for sale in a retail food production and marketing
establishment or a frozen food locker plant to clearly
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identify the species (beef, veal, lamb or pork) and the primal
cut from which it is derived, and the retail name. Exempts
ground beef, boneless stewing meat, cubed steaks, sausage and
soup-bones from this requirement.
1.Permits CDPH to adopt regulations that name and describe the
characteristics of salmon and any other fish or other seafood
it considers appropriate. Requires CDPH to consult with the
Department of Fish and Game and other stakeholders, as
specified, and prohibits CDPH from adopting any regulation
that conflicts with the common name of any fish designated by
the Department of Fish and Game, as specified.
2.Establishes misdemeanor penalties for violations of the
Sherman Food, Drug, and Cosmetic Law, including the
misbranding of food. Generally speaking, penalties could
include up to a year in the county jail and fines of up to
$1,000, or up to $10,000 for repeated violations or where
there was intent to defraud or mislead.
3.Permits CDPH, in addition to the misdemeanor penalties, to
assess civil penalties for violations of the Sherman Food,
Drug, and Cosmetic Law of up to $1,000 per day.
4.Requires the Attorney General, any district attorney, or any
city attorney to whom CDPH reports any violation of the
Sherman Food, Drug, and Cosmetic Law to begin appropriate
proceedings in the proper court, but specifies that CDPH is
not required to institute proceedings for minor violations if
CDPH believes the public interest will be adequately served in
the circumstances by a suitable written notice or warning.
This bill:
1.Requires any label of fresh, frozen, or processed fish or
shellfish, wild or farm-raised, offered for sale at wholesale
or retail to clearly identify the species of fish or shellfish
by its common name.
2.Defines the "common name," for purposes of this bill, if the
common name is not defined by the CDPH by regulation, as the
common name or market name for any seafood species identified
in the Seafood List issued by the federal FDA.
3.Defines "processed," for purposes of this bill, as food fish
or shellfish processed by heat for human consumption, such as
food fish or shellfish that is kippered, smoked, boiled,
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canned, cleaned, portioned, or prepared for sale or attempted
sale for human consumption.
4.Deems it unlawful and that it constitutes misbranding for any
person to knowingly sell or offer for sale any fish or
shellfish that is labeled in violation of this bill.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1.Author's statement. According to the author, in 2013, Oceana
released a two year study on fish sold for retail in San
Francisco, Monterey, and Los Angeles. The study found that 90
percent of sushi samples were mislabeled in Los Angeles
County, 38 percent of all fish were mislabeled in Northern
California, and that Southern California leads the nation in
mislabeled fish.
Mislabeling can lead to the consumption of seafood that is
unhealthy and dangerous. Specific fish can have unhealthy
levels of mercury. Additionally, shellfish can be illegally
harvested from areas that have been deemed too polluted for
commercial fishing. The US Environmental Protection Agency
gives a clear warning on the impairment of neurological
development that mercury causes for fetuses and children.
While certain fish contain high levels of mercury, other fish
are seen as beneficial for pregnant woman. The Mayo Clinic
writes that "seafood can be a great source of protein, iron
and zinc - crucial nutrients for your baby's growth and
development." The Oceana study found that fish marketed as low
mercury can actually be different fish with higher levels of
mercury. Studies have also found that escolar is very often
mislabeled as more popular fish. The FDA has a health warning
for escolar because it can cause keriorrhea. It is similar to
diarrhea and can cause stomach cramps, headaches, nausea, and
vomiting.
2.Seafood safety. In 2010 more than 80 percent of seafood
consumed in the United States-such as shrimp, salmon, and
tilapia-was imported, with about half coming from aquaculture
(fish farming), according to estimates from the Department of
Commerce's National Oceanic and Atmospheric Administration.
Since farmed fish can have high rates of bacterial infections,
farmers may treat them with drugs, such as antibiotics and
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antifungal agents, to increase their survival rates. Once
drugs are introduced, their residue can remain in the fish
through harvesting, processing, and consumption. According to
a 2008 FDA report to Congress, the residues of some of these
drugs can cause cancer, allergic reactions, and antibiotic
resistance when consumed by humans. As imports of farmed fish
increase, so too do the concerns over the presence of drug
residues. While the health benefits of seafood are well known
and documented, according to Seafood Safe, a testing program
for mercury and polychlorinated biphenyls (PCBs) in seafood,
fish can also pose health risks when contaminated with
substances such as heavy metals, like mercury and lead,
industrial chemicals, like PCBs, and pesticides, like
dichlorodiphenyltrichloroethane (DDT), and eaten in large
quantities. These contaminants can come from industrial and
municipal discharges, agricultural practices, and storm water
runoff that enter waterways and accumulate in sediments at the
bottoms of streams, rivers, lakes, and coastal areas. These
contaminants can be particularly harmful if ingested in large
quantities by young children, pregnant women, and older
adults. Certain species of fish are known to be contaminated
with higher amounts of these chemicals and people are advised
to limit consumption to protect their health. Because of these
potential safety issues, Seafood Safe recommends that
consumers keep track of their cumulative fish consumption,
especially if consuming more than one species.
3.Seafood fraud and mislabeling. With increased seafood imports
and decreased monitoring, fraud and deception in seafood
marketing is becoming more widespread, according to a July
2010 Congressional Research Service report on seafood
marketing. The report asserts that "the flesh of many fish
species is similar in taste and texture and, therefore, it is
difficult to identify species in fillet form, especially after
preparation for consumption." This can make it relatively easy
for a restaurant to replace an expensive fish species with a
less expensive alternative, and charge the consumer for the
higher price. Seafood fraud can also occur at the
manufacturing level, by knowingly packaging and mislabeling a
fish product. Some distributors have also been found to
knowingly sell restaurants and retailers lower-valued species,
claiming they are different species of a higher value.
4.Federal efforts to prevent seafood fraud. Three federal
agencies play key roles in detecting and preventing seafood
fraud: the Department of Homeland Security's Customs and
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Border Protection (CBP), the National Marine Fisheries Service
(NMFS), and the FDA. According to a January 2009 Governmental
Accountability Office (GAO) report on seafood fraud, the CBP
and the NMFS conduct several activities to help detect and
prevent seafood fraud. The CBP reviews seafood import
documentation to detect schemes to avoid paying the
appropriate customs duties as seafood products enter the
country, among other things. The NMFS addresses seafood fraud
through its voluntary, fee-for-service inspection program,
which includes inspecting seafood that retailers, among
others, are purchasing to verify its net weight and ensure the
species is correctly identified. According to the NMFS
officials, the NMFS inspects approximately one-third of the
seafood consumed in the United States.
In its report on seafood fraud, the GAO outlined how the FDA
focuses primarily on food safety and undertakes very few
fraud-related activities. Under the federal FFDCA, the FDA is
responsible for ensuring that the nation's food supply,
including imported seafood, is safe, wholesome, sanitary, and
properly labeled. The FDA examines only about two percent of
imported seafood annually, and its primary seafood oversight
program does not address economic fraud risks. The FDA
maintains a publicly available list of seafood names that is
intended to help the industry correctly label products.
However, until 2009, the GAO claims the FDA had not fully
updated this list. Due to the limited scope of the FDA's
seafood oversight program, its mismanagement of the Seafood
List, and its failure to update its guidance to reflect the
allergen labeling requirement, the GAO claims consumers have
less assurance that the seafood they purchase is correctly
labeled.
5.Related legislation. SB 1381 (Evans) would enact "The
California Right to Know Genetically Engineered Food Act" to
require the labeling of all genetically engineered (GE) foods
sold within California. SB 1381 passed out of the Senate
Health Committee on March 26, 2014 with a 5-2 vote, and is
pending in Senate Rules Committee.
6.Prior legislation. SB 1486 (Lieu) of 2012 would have required
retail food facilities that sell seafood and operate 19 or
more locations to provide the common name, country of origin,
and whether the seafood was wild-caught or raised to consumers
on a menu insert, brochure, or display. SB 1486 was approved
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in Senate Health Committee by a 5-3 vote, was referred to
Senate Rules Committee, where no further action was taken.
AB 88 (Huffman) of 2011 would have required that GE salmon or
other finfish products prepared from those fish or the progeny
of GE fish be conspicuously disclosed on the label. GE fish
without this label would have been considered misbranded. AB
88 failed passage in the Assembly Appropriations Committee.
AB 1217 (Monning) Chapter 279, Statutes of 2009, requires the
Ocean Protection Council to develop and implement a voluntary
sustainable seafood promotion program. Requires development of
a label to identify and market seafood caught in California
that is certified to meet internationally accepted
sustainability standards.
SB 1121 (Migden) of 2008 would have required the labeling of
all food containing genetically modified animals. SB 1121 was
held in the Senate Appropriations Committee.
SB 1576 (Florez) of 2008 would have required the retailer of
any meats and perishable agricultural commodities to provide
information on the country of origin of the item by means of a
label or other specific means at the final point of sale to
consumers. SB 1576 was held in the Senate Appropriations
Committee.
AB 2079 (Emmerson), Chapter 73, Statutes of 2008, deems food
to be misbranded if the labeling does not conform to federal
food allergen labeling requirements.
AB 1058 (Koretz) of 2005 would have required retailers of beef
products to label beef produced outside the United States with
the country of origin, as specified. AB 1058 was vetoed by
then-Governor Schwarzenegger.
7.Support. This bill is sponsored by Oceana, which states in
support that Americans are routinely urged to eat more seafood
as a healthy diet, yet consumers are often given inadequate,
confusing or misleading information about the seafood they
purchase. Oceana states that seafood fraud impacts the
consumer wallet when a more expensive fish is ordered and is
substituted for a less expensive, less desirable fish. Health
concerns also surround seafood fraud with regards to fish that
contain higher mercury content. Additionally, seafood fraud is
unfair to fishermen who fish responsibly when they lose
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hard-earned profits when fish caught unsustainably are sold in
their place. Oceana states that from 2010 to 2012, it
conducted one of the largest seafood labeling investigations
in the world to date, collecting 1,215 seafood samples from
674 retail outlets in 21 states to determine if they were
honestly labeled. DNA testing found that one-third of the
1,215 samples analyzed nationwide were mislabeled, according
to FDA guidelines. Alarmingly, California fared among the
worst in the nation with 38 percent of seafood tested in
northern California mislabeled and 52 percent of seafood
tested in southern California mislabeled.
8.Policy Comment. Under both federal and state law, labels that
are false and misleading are deemed mislabeled and subject to
penalties. Therefore, it is already illegal to mislabel fish
or shellfish. However, based on Oceana's study and numerous
media reports, accuracy in seafood labeling is clearly not
strongly enforced. This bill, in essence, proposes to address
this problem by enacting an explicit requirement that seafood
products be accurately labeled with the common name of the
fish, rather than rely on the more general existing law
requirement that labels not be false or misleading. As the
requirement in this bill would be enforced using the existing
mechanisms available under the Sherman Food, Drug, and
Cosmetic Law, this bill seems to rely on an affirmative
requirement to label seafood in order to give consumers better
information, rather than enforcement of existing misleading
labeling laws.
SUPPORT AND OPPOSITION :
Support: Oceana (sponsor)
Sierra Club California
Oppose: None received
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