BILL ANALYSIS Ó AB 226 Page 1 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: AB 226 Page 2 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 AB 226 Page 3 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 AB 226 Page 4 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 AB 226 Page 5 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 AB 226 Page 6 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 AB 226 Page 7 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 AB 226 Page 8 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 AB 226 Page 9 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: AB 226 Page 10 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-registeredlicensed 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 AB 226 Page 11