BILL ANALYSIS Ó
AB 226
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON HEALTH
Bonta, Chair
AB
226 (Atkins) - As Amended April 7, 2015
SUBJECT: Retail food safety: fishermen's markets.
SUMMARY: Defines and creates a framework for a "fishermen's
market" as a type of nonpermanent food facility that meets
specific requirements. Specifically, this bill:
1)Creates a fishermen's market as a type of nonpermanent food
facility that:
a) Is operated by a California Department of Fish and
Wildlife (DFW) licensed commercial fisherman or an entity
representing California seafood producers;
b) Sells only raw fresh fish, raw edible aquatic plants, or
fresh frozen fish, as defined, that is caught by DFW
licensed commercial fishermen or harvested by a California
registered aquaculturist; and,
c) Sells directly to consumers.
2)Establishes guidelines for a fishermen's market, including
requirements that:
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a) The fishermen's market must comply with various
provisions of the California Retail Food Code (CRFC), as
specified, including general provisions, contamination,
sanitation, and plumbing, compliance and enforcement;
b) The fishermen's market must comply with additional
handwashing, warewashing, food safety, and facilities
requirements, as specified;
c) Fish sold in the fishermen's market must be caught
legally by licensed commercial fishermen and that the
license and contact information must be available upon
request of the local enforcement agency;
d) The name of fisherman, vessel or farm, and acceptable
fishermen's market name of the fish for sale must be
displayed for customers to see. Defines acceptable
fishermen's market name as a name recognized by the U.S.
Food and Drug Administration (FDA) as a suitable "statement
of identity," as defined;
e) Allows the fishermen's market to provide, under a
separate health permit and applicable requirements, a
service that fillets, cuts, or packages fish for customers;
and
f) The fishermen's market must submit a permit application
and site plan to the enforcement agency that includes a map
of the fishermen's market, as specified, details of the
food booth construction, policies, and procedures for,
among other things, food handling, temperature control,
cleaning, and sanitizing, as specified, and a list of names
of participating fishermen or aquaculturists, and copies of
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their licenses or registrations.
EXISTING
LAW:1)
1)Enacts regulation on fishing, including gear type, and
provides for licensing requirements for specific types of
fishing, under the jurisdiction of the DFW.
2)Establishes the CRFC, which establishes health and sanitation
standards for retail food facilities, as defined. Makes the
Department of Public Health responsible for the adoption of
regulations to implement and administer CRFC and vests local
enforcement agencies with primary responsibility for
enforcement of CRFC.
3)Defines a food facility as an operation that stores, prepares,
packages, serves, vends, or otherwise provides food for human
consumption, on or off the premises, regardless of whether
there is a charge, at the retail level. Food facilities
include, but are not limited to, permanent and nonpermanent
facilities, public and private school cafeterias, restricted
food service facilities, licensed health care facilities,
commissaries, mobile food facilities, mobile support units,
temporary food facilities, vending machines, certified
farmers' markets (CFMs), and farm stands.
4)Allows California farmers to sell California grown fresh
fruits, nuts, and vegetables that they produce directly to the
public through CFMs under the Direct Marketing Law.
5)Defines "certified farmers' market" as a location that is
certified through the enforcement officers of the county
agricultural commissioners and operated pursuant to provisions
of existing law that permit the direct marketing of
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agricultural products.
6)Requires a permit to be obtained by the person or organization
responsible for facilities that are shared by two or more food
facilities, in addition to a permit issued to each food
facility participating in a community event (applies to
operators of CFMs where temporary or mobile food facilities
are selling food).
7)Establishes food safety and sanitation requirements for CFMs
governing food preparation, storage, and sampling, among other
things. Prohibits food preparation at CFMs with the exception
of food samples
FISCAL EFFECT: This bill has not been analyzed by a fiscal
committee.
COMMENTS:
1)PURPOSE OF THIS BILL. According to the author, this bill is
necessary to allow California fisherman to organize and sell
their wares in ways similar to popular and well-established
CFMs. This bill is a result of a County of San Diego convened
stakeholder group which developed recommendations for
legislative changes to state law that would streamline the
permitting process and allow for future growth of fishermen's
markets. The author states that this bill will support
increased access to fresh seafood and support the fishing
industry in California by expanding the opportunities for the
public to have direct access to fresh seafood and encouraging
the availability of Fishermen's markets within the state.
2)BACKGROUND:
a) CERTIFIED FARMERS' MARKETS. Prior to 1977, regulations
required farmers to properly pack, size, and label their
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fresh fruits, nuts, and vegetables in standard containers
to transport and sell in markets anywhere other than the
farm site. Following the enactment of the federal Farmer
to Consumer Direct Marketing Act of 1976, California
Department of Food and Agriculture enacted regulations that
exempted farmers from packing, sizing and labeling
requirements for fresh fruits, nuts, and vegetables and
enabled them to sell products they grow at CFMs, provided
they receive certification from the county agricultural
commissioner. CFMs have become established in many
California communities, as have other outlets for direct
marketing, such as farm stands and community supported
agriculture. There are roughly 800 farmers' markets in
California, a significant number of which operate
year-round.
A CFM must have a certificate issued by the county
agricultural commissioner authorizing it as a location
where certified producers can sell their products directly
to consumers, organizations, or entities that subsequently
sell or distribute the products to end users. A CFM is
also considered to be a food facility and must have a
health permit issued by the local environmental health
authority. It may be operated by one or more certified
producers, by a non-profit organization, or by a local
governmental agency. Each vendor selling certifiable
agricultural products at the CFM must obtain a Certified
Producer's Certificate, which allows them to sell fresh
fruits, nuts, vegetables, shell eggs, honey, cut flowers,
and nursery stock. These farmers must be certified and
annually inspected by their local county agricultural
commissioner to verify that all products are grown on the
farmer's property. A CFM may prepare market rules
specifying the admission of producers, admission of
agricultural products, and the removal of producers from
the market. A CFM has the authority to establish rules
regulating the type and number of producers, the type and
number of agricultural products, and the selling methods.
Aquacultured (farmed) fish grown in California-controlled
waters (such as catfish, trout, and oysters) may be sold at
a CFM as an "agricultural product," but ocean caught fish
cannot be certified as such. Individual CFM managers may
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choose whether or not to additionally allow ocean fish and
shellfish to be sold in a designated "nonagricultural
product" area, which can also include other items such as
bakery good and crafts.
b) TUNA HARBOR DOCKSIDE MARKET. The County of San Diego,
as part of its Live Well San Diego initiative, supports
improved access to and the promotion of the advantages of
local, fresh food, including locally-caught fresh fish. As
part of this effort, and in support of local fishermen,
aquaculturists, and San Diego's Blue Economy, the County of
San Diego partnered with the San Diego Unified Port
District to identify a location where commercial fishermen
could sell locally-caught fresh fish directly to consumers.
This resulted in the opening of the Tuna Harbor Dockside
Fishermen's Market in August of 2014. The County of San
Diego reviewed existing state law with a local stakeholder
group including local fishermen, aquaculturists, the Port
of San Diego, the National Marine Fisheries Service, the
Maritime Alliance, University of California San Diego
Scripps Institute of Oceanography, and others, and
identified several issues that can be streamlined to better
accommodate open air fresh catch Fishermen's Markets. In
the process of opening the Tuna Harbor Dockside Market, the
County and stakeholders identified barriers and developed
legislative proposals to address them.
c) THE FDA SEAFOOD LIST GUIDANCE ON NAMING. According to
the FDA, the Federal Government has worked to provide
consistent and scientifically sound recommendations to
industry and consumers about acceptable market names for
seafood sold in interstate commerce. This advice was
consolidated in 1988 when The Fish List was first published
by FDA in cooperation with the National Marine Fisheries
Service to provide a source of names that would facilitate
consistency and order in the U.S. marketplace and reduce
confusion among consumers. In 1993, The Fish List was
revised to include the acceptable market names for domestic
and imported invertebrate species sold in interstate
commerce, and renamed The Seafood List. The Seafood List
assists manufacturers in properly labeling seafood and
reflects the acceptable market names of new species
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introduced into the U.S. marketplace.
The use of acceptable market names is essential in the
identification of seafood because of the exceptional number and
variety of species represented by this unique category of foods.
The unparalleled diversity in this category of similar foods
means that very few species have just one nationally recognized,
common or usual name that allows consumers to unambiguously
identify a species in the marketplace. Typically, even the most
popular and widely consumed species have acceptable market names
that are shared with other species. For example, "salmon,"
"bass," "tuna," "cod," "halibut," and "snapper" are names
commonly used to identify particular species of fish, but these
are also names that are often used to represent a group of
finfish species. When used as the market name, the group name
may properly encompass and adequately identify for consumers any
member of the group, but it does not provide enough information
for a consumer to identify the specific species, if a consumer
desires that level of specificity.
d) COMMERCIAL FISHING AND AQUACULTURE. Commercial fishing
and aquaculture are governed by the Fish and Game Code and
regulated by DFW. There are many different types of
commercial fishing licenses, depending on various factors
such as the type of vessel, type of catch, or location of
catch. When fish are landed in California - unloaded onto
a dock - state law requires preparation of a landing
receipt that must include the location the fish was caught,
among other things. A licensed commercial fisherman who
has permits to fish in multiple states could catch fish in
one state and land in another, which would be reflected in
the landing receipt. State waters are limited to three
miles off the coast, federal waters are from three-to-200
miles, and international waters are more than 200 miles
off-shore. DFW has been delegated authority to manage many
fisheries. For example, Dungeness crab caught outside
three miles in federal waters would be handled just like
fish caught in state waters. Commercial fishing
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entitlements are not required for aquaculturists, although
they are required to register with DFW. Several types of
commercial fish businesses, separate from commercial
fishing, are licensed through DFW including fish importer,
fish retailer, fish wholesaler, and others.
3)SUPPORT. The San Diego Regional Chamber of Commerce, one of the
cosponsors of this bill, states that this provides greater
access to fresh seafood, financially support those who catch
it, and allows the community to connect with the local fishing
industry. Supporters of this bill state that it is necessary
to address the gap in existing law and regulation by allowing
commercial fishermen to organize under a single permit for
fishermen's markets in a style similar to CFMs. According to
the Food & Beverage Association of San Diego, fishermen's
markets allow local residents, for the first time in many
years to choose their next meal from the fresh catch brought
ashore by local fishermen and support the local fishing fleet.
4)RELATED
LEGISLATION.
a) AB 143 (Wood) expands an exemption in the CRFC allowing
wine tasting rooms that currently only serve crackers to
also serve pretzels or prepackaged non-potentially
hazardous foods. AB 143 is pending in this Committee.
b) AB 724 (Dodd) revises the definition of community event
to include a district fair, and would require a temporary
food facility to be granted a permit to operate at a
community event if the enforcement agency makes a
determination that the temporary food facility meets
specified requirements, and requires the permit to be
issued for the entire duration of the community event. AB
724 is pending in this Committee.
c) AB 820 (Stone) 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 whether the fish was wild caught or farm
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raised. Prohibits a restaurant from knowingly
misidentifying whether the fish was wild caught or farm
raised. AB 820 is pending in Assembly Agriculture
Committee.
d) AB 1076 (Mayes) exempts from the definition of a food
facility, a snack bar operated by a charitable nonprofit
organization and authorizes snack bars to undertake limited
food preparation, as defined. AB 1076 is pending in this
Committee.
5)PREVIOUS LEGISLATION.
a) AB 2539 (Ting), Chapter 907, Statutes of 2014, made
various changes to the rules governing CFMs, including
requiring all harvested, cut, wrapped, or otherwise
processed meat, poultry, and fish products offered for sale
in a farmers' market to be from approved sources and to be
maintained at 41 degrees Fahrenheit.
b) AB 593 (Strom-Martin), Chapter 833, Statutes of 1999,
codifies regulations exempting direct marketers from
specified packing and labeling standards, amends fee
structures, and authorizes farmers' markets to establish
rules and procedures.
6)POLICY COMMENT. Consumers shopping at California CFMs have
some assurance that the produce is grown in this state. Ocean
caught fish are, by definition, not grown in California.
Because of the popularity of CFMs, the consumer may have some
expectation that they are buying at a fishermen's market is a
"local" product. It is unclear whether this bill, as drafted,
would allow globally imported fish to be sold at a fishermen's
market. The author may wish to consider either excluding
imported fish from the market or requiring disclosure from the
vendor if imported fish is being sold.
7)TECHNICAL AMENDMENT. To correct a drafting error, the author
would like to make the following change:
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114378.3. (a) A permit application and site plan shall be
submitted to the enforcement agency at least two weeks
prior to the operation of a fishermen's market. Only
California- registered licensed commercial fishermen,
California-registered aquaculturists, or an entity
representing California seafood producers may act as the
responsible person and sole permitholder for a fishermen's
market.
REGISTERED SUPPORT / OPPOSITION:
Support
San Diego County Board of Supervisors (co-sponsor)
San Diego Regional Chamber of Commerce (co-sponsor)
Unified Port of San Diego (co-sponsor)
California Association of Environmental Health Administrators
California Aquaculture Association
California Fisheries and Seafood Institute
California Sea Grant College Program
City of San Diego
Food & Beverage Association of San Diego
San Diego Fishermen's Working Group
San Diego Regional Chamber of Commerce
Slow Food California
Opposition
None on file.
Analysis Prepared
by: Dharia McGrew / HEALTH / (916) 319-2097
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