BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1138|
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UNFINISHED BUSINESS
Bill No: SB 1138
Author: Padilla (D)
Amended: 8/28/14
Vote: 21
SENATE HEALTH COMMITTEE : 8-0, 4/9/14
AYES: Hernandez, Anderson, Beall, DeSaulnier, Evans, Monning,
Nielsen, Wolk
NO VOTE RECORDED: De León
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/23/14
AYES: De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg
SENATE FLOOR : 36-0, 5/27/14
AYES: Anderson, Beall, Berryhill, Block, Cannella, Corbett,
Correa, De León, DeSaulnier, Evans, Fuller, Gaines, Galgiani,
Hancock, Hernandez, Hill, Hueso, Huff, Jackson, Knight, Lara,
Leno, Lieu, Mitchell, Monning, Morrell, Nielsen, Padilla,
Pavley, Roth, Steinberg, Torres, Vidak, Walters, Wolk, Wyland
NO VOTE RECORDED: Calderon, Liu, Wright, Yee
ASSEMBLY FLOOR : Not available
SUBJECT : Fish and shellfish: labeling
SOURCE : Oceana
DIGEST : This bill provides that it is unlawful to sell or
offer for sale any fresh, frozen, or processed fish or shellfish
intended for human consumption, without clearly identifying
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specified information, including the species of fish or
shellfish by its common name. This bill prohibits a restaurant
from knowingly misidentifying the species of fish or shellfish
by its common name. This bill implements these provisions on
July 1, 2016.
Assembly Amendments deem it unlawful to sell fish or shellfish
without clearly identifying specified information, rather than
just requiring fish or shellfish offered for sale to be labeled
by its common name; establish various definitions; specify
provisions for food facilities and restaurants related to the
sale of fish or shellfish; and set an enactment date.
ANALYSIS :
Existing federal law:
1.Establishes the Federal Food, Drug, and Cosmetic Act, 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 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 (Sherman
Act), administered by the Department of Public Health (DPH),
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.
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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
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.
5.Permits DPH to adopt regulations that name and describe the
characteristics of salmon and any other fish or other seafood
it considers appropriate. Requires DPH to consult with the
Department of Fish and Game (DFG) and other stakeholders, as
specified, and prohibits DPH from adopting any regulation that
conflicts with the common name of any fish designated by DFG,
as specified.
6.Establishes misdemeanor penalties for violations of the
Sherman Act, 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.
7.Permits DPH, 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 DPH reports any violation of the Sherman
Act to begin appropriate proceedings in the proper court, but
specifies that DPH is not required to institute proceedings
for minor violations if DPH 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 following:
A. Species of fish or shellfish by its common name, as
specified;
B. Whether the fish or shellfish was wild caught or farm
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raised; and
C. Whether the fish or shellfish was caught domestically or
imported.
2.Defines "common name," if the common name is not defined by
existing California law or regulation, as the common name for
any seafood species identified in the Seafood List issued by
FDA.
3.Defines "processed" 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.
Specifies that this provision should not be interpreted to
prohibit the labeling of the species of fish or shellfish by
its acceptable market name, as identified in the Seafood List
issued by the FDA.
5.Provides that a retail food facility or restaurant that acts
in reasonable reliance on package labeling and product invoice
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.
Specifies that this provision should not be interpreted to
prohibit a retail food facility or a restaurant from labeling
or identifying the species of fish or shellfish by its
acceptable market name, as identified in the Seafood List
issued by the FDA.
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.
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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.Sets an enactment date of July 1, 2016.
Background
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.
Comments
According to the author's office, 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 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 U.S. 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 -
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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.
Prior Legislation
SB 1486 (Lieu, 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. The bill was approved in Senate Health Committee by
a 5-3 vote, was referred to Senate Rules Committee, where no
further action was taken.
AB 88 (Huffman, 2011) would have required that genetically
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. The bill 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, 2008) would have required the labeling of all
food containing genetically modified animals. The bill was held
in the Senate Appropriations Committee.
SB 1576 (Florez, 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. The bill was held in the Senate Appropriations
Committee.
AB 2079 (Emmerson, Chapter 73, Statutes of 2008) deems food to
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be misbranded if the labeling does not conform to federal food
allergen labeling requirements.
AB 1058 (Koretz, 2005) would have required retailers of beef
products to label beef produced outside the United States with
the country of origin, as specified. The bill was vetoed by
Governor Schwarzenegger.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Assembly Appropriations Committee:
1.One-time General Fund (GF) costs to DPH of up to $150,000 to
promulgate and amend regulations to implement the provisions
of this 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.
SUPPORT : (Verified 8/28/14)
Oceana (source)
Aquarium of the Bay/The Bay Institute
CALPIRG
Center for Oceanic Awareness, Research, and Education
County of Los Angeles
Del Mar Seafoods
Environment California
Friends of the Earth
Light and Motion
Local Wild Seafood Co.
Marine Life Studies
Monterey Bay Aquarium
Monterey Coastkeeper
Monterey Fish Market
Natural Resources Defense Council
Ocean Conservancy
Ocean Outfall Group
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Passionfish Restaurant
Save our Shores
Save the Whales
Sea Stewards
Sierra Club
Taylor's Market and Taylor's Restaurant
The Otter Project
Turtle Island Restoration Network
Wildcoast
OPPOSITION : (Verified 8/28/14) (Reflects prior version -
unable to reverify)
California Fisheries Institute
California Wetfish Producers Association
National Fisheries Institute
National Retailers Association
West Coast Seafood Processors Association
ARGUMENTS IN SUPPORT : The bill's sponsor, Oceana, states 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 regard to fish that contain higher mercury
content. Additionally, seafood fraud is unfair to fishermen who
fish responsibly when they lose 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% of seafood tested
in northern California mislabeled and 52% of seafood tested in
southern California mislabeled.
ARGUMENTS IN OPPOSITION : The National Fisheries Institute
(NFI) writes in opposition that this bill imposes duplicative,
unworkable, and costly labeling requirements on seafood
companies and their retail partners nationwide, but does not
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provide consumers with meaningful help in making informed
choices about the food they eat. NFI states that because this
bill directs seafood companies to use the "common name" instead
of the FDA requirement to label seafood with either the
"acceptable market name" or "common name," there will be
significant consumer confusion rather than clarity. NFI
furthers states that because of the compliance burden, many
seafood companies would have to consider abandoning the
California market.
JL:k 8/29/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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