BILL ANALYSIS Ó
SB 1138
Page 1
Date of Hearing: August 27, 2014
ASSEMBLY COMMITTEE ON AGRICULTURE
Susan Talamantes Eggman, Chair
SB 1138 (Padilla) - As Amended: August 21, 2014
SENATE VOTE : 36-0
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. Specifically,
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 following:
a) Species of fish or shellfish by its common name, as
specified;
b) Whether the fish or shellfish was wild caught or farm
raised; and,
c) Whether the fish or shellfish was caught domestically or
imported.
2)Defines the common name, for purposes of this bill, if the
common name is not defined by current California law or
regulation, as the common name for any seafood species
identified in the Seafood List issued by the federal Food and
Drug Administration.
3)Defines processed, for purposes of this bill, as cooking,
baking, heating, drying, mixing, grinding, churning,
separating, extracting, cutting, fermenting, eviscerating,
preserving, dehydrating, freezing, or otherwise manufacturing,
and includes packaging, canning, jarring, or otherwise
enclosing food in a container.
4)States it is 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, as specified.
5)Provides that a retail food facility or restaurant that acts
in reasonable reliance on package labeling and product invoice
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for labeling fish or shellfish to satisfy the labeling
requirements shall not be held in violation of the labeling
requirements.
6)Requires any retail food facility or restaurant that offers or
sells fresh, frozen, or processed fish or shellfish, wild or
farm-raised, shall clearly identify, at point of sale, the
species of fish or shellfish by its common name, as specified.
7)Provides that if any retail food facility that offers or sells
fresh, frozen, or processed fish or shellfish, wild or
farm-raised, and choses to list country of origin, or whether
the fish is wild caught or farm raised, must not be knowingly
mislabeled.
a) States that retail food facilities are not required to
label country of origin, or whether the fish is wild caught
or farm raised.
8)Set an enactment day of July 1, 2016.
EXISTING LAW:
1) Establishes the Sherman Food, Drug, and Cosmetic Law (Sherman
Act), administered by CDPH, to regulate the contents,
packaging, labeling, and advertising of food, drugs, and
cosmetics.
2)States any food misbranded if it's labeling is false or
misleading in any particular. States any food misbranded if
it is offered for sale under the name of another food.
3)States 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 , as specified, to clearly identify the
species 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.
5)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
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Department of Fish and Game (CDFG) and other stakeholders, as
specified, and prohibits CDPH from adopting any regulation
that conflicts with the common name of any fish designated by
CDFG, as specified.
6)Establishes misdemeanor penalties for violations of the
Sherman Act, including the misbranding of food. Penalties may
include up to a year in the county jail and fines of up to
$1,000, or up to $10,000 for repeated violations, as
specified.
7)Permits CDPH, in addition to the misdemeanor penalties, to
assess civil penalties for violations of the Sherman Act of up
to $1,000 per day.
8)Requires the attorney general, any district attorney, or any
city attorney to whom CDPH reports any violation of the
Sherman Act, to begin appropriate proceedings in the proper
court. Allows CDPH to issue written notice or warning for
minor violations, as specified.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)One-time General Fund (GF) costs to the Department of Public
Health (DPH) of up to $150,000 to promulgate and amend
regulations to implement the provisions of the bill. One-time
GF costs to DPH of approximately $170,000 to purchase
laboratory equipment needed to test fish and shellfish samples
for accurate labeling.
2)Ongoing GF enforcement costs to DPH of approximately $600,000
per year based on 650 spot inspections of retailers to verify
compliance, further investigation and DNA testing of 100
samples resulting from issues raised in the inspections, and
responses to 50 consumer complaints per year.
COMMENTS : 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% of sushi samples were mislabeled in Los
Angeles County, 38% of all fish were mislabeled in Northern
California, and with 52% of sea food tested being mislabeled,
southern California leads the nation in mislabeled fish.
Mislabeling defrauds consumers, restaurants, and fishermen when
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a more expensive fish is ordered and then is substituted with a
less expensive, less desirable fish. Restaurants are victims of
fraud when fish distributors sell falsely labeled fish. Fraud
is unfair to fishermen who fish responsibly and lose profits
when fish caught unsustainably are sold in their place.
Furthermore, according to the author, mislabeling fish 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.
Eating mislabeled fish can lead to potential health risks,
especially to vulnerable populations, such as children and
pregnant women.
Under current federal and state law, it is already illegal to
mislabel fish or shellfish. However, recent studies show
seafood mislabeling is not strongly enforced. This bill
proposes to address this issue 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.
This bill does add protection for entities that unknowingly
sells mislabeled fish, if the entities have documentation to
show the product was mislabeled when purchased.
Opponents state this bill goes too far and ignores current
consumer protection laws. By requiring labeling whether fish is
imported or domestic, caught or farmed, goes beyond looking at
fraud and moves into consumer preferences. Opponents point out
that current food mislabeling laws can be and are enforced by
local, state and federal health agencies, with fines and
possible jail time. According to opponents, this bill will add
almost nothing to that enforcement or deterrence.
RELATED 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 held in Senate Rules
Committee.
AB 88 (Huffman) of 2011 would have required that genetically
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engineered (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.
REGISTERED SUPPORT / OPPOSITION :
Support
CALPIRG
Center for Oceanic Awareness, Research & Education
Del Mar Seafood's Inc.
Light & Motion Industries
Marine Life Studies
Monterey Bay Aquarium
Monterey Coastkeepers
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Natural Resources Defense Council
Ocean Conservancy
Ocean Outfall Group
Oceana
Passion Fish Restaurant
Save the Whales
Sierra Club
Taylor's Market
The Otter Project
Turtle Island Network
7 individual seafood restaurants
Opposition
California Fisheries & Seafood Institute
Analysis Prepared by : Victor Francovich / AGRI. / (916)
319-2084