BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 234
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|AUTHOR: |Gordon |
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|VERSION: |June 9, 2015 |
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|HEARING DATE: |June 24, 2015 | | |
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|CONSULTANT: |Vince Marchand |
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SUBJECT : Food: sale
SUMMARY : Revises provisions of law governing community food producers
or gleaners by allowing them to sell whole uncut fruits or
vegetables, or unrefrigerated shell eggs, directly to a
permitted food facility, not just a restaurant, and limits the
ability of a local environmental health officer to require
community food producers or gleaners to register with the local
enforcement entity only if the food producers or gleaners do not
meet certain conditions.
Existing law:
1)Establishes the California Retail Food Code (CRFC), which
governs all aspects of retail food safety and sanitation in
California under the CRFC. Specifies that primary
responsibility for enforcement of the CRFC is with local
enforcement agencies.
2)Requires the California Department of Food and Agriculture
(CDFA), in consultation with the California Department of
Public Health (CDPH) and local health officers or designees,
to publish and post on CDFA's Internet Web site small farm
food safety guidelines on the safe production, processing, and
handling of both non-potentially hazardous and potentially
hazardous foods.
3)Defines "community food producer" as a producer of
agricultural products on land that is not zoned for
agricultural use but is otherwise in compliance with
applicable local land use and zoning restrictions, including,
but not limited to, restrictions governing personal gardens,
community gardens, school gardens, and culinary gardens.
AB 234 (Gordon) Page 2 of ?
4)Defines "gleaner" as a person who legally gathers remnants of
an agricultural crop or harvests part of, or all of, an
agricultural crop made available by the owner of the
agricultural crop.
5)Permits a community food producer or a gleaner, unless
prohibited by a local jurisdiction that has adopted an
ordinance regulating community food production, to sell or
provide whole uncut fruits or vegetables, or unrefrigerated
shell eggs (up to 15 dozen per month), directly to the public,
to a restaurant, or to a cottage food operation if the
community food producer meets all of the following
requirements, in addition to any requirements imposed by a
locally adopted ordinance:
a) Requires agricultural products to be grown or
produced in compliance with all applicable federal,
state, or local laws, regulations, and food safety
guidelines issued by a regulatory agency;
b) Requires agricultural products to be labeled
with the name and address of the community food
producer;
c) Requires conspicuous signage to be provided in
lieu of a product label if the agricultural product is
being sold by the community food producer on the site
of the production. Requires this signage to include
the name and address of the community food producer;
and,
d) Requires best management practices (BMPs), as
described by CDFA regarding small farm food safety
guidelines on safe production, processing, and
handling of both non-potentially hazardous and
potentially hazardous foods.
6)Permits a local city or county health enforcement office to
require a community food producer to register with the city or
county, and to provide specified information, including the
name, address, and telephone number of the community food
producer.
This bill:
1)Clarifies and expands the ability of a community food producer
or gleaner to sell or provide whole uncut fruits or
vegetables, or unrefrigerated shell eggs, by allowing them to
sell to any food facility, and not just a restaurant, in
AB 234 (Gordon) Page 3 of ?
addition to direct sales to the public and to a cottage food
operation.
2)Eliminates the ability of a local jurisdiction to adopt an
ordinance prohibiting a community food producer or gleaner
from selling or providing whole uncut fruits or vegetables, or
unrefrigerated shell eggs, directly to the public or to food
facilities.
3)Restricts the ability of a local health enforcement agency to
require a community food producer or gleaner to be registered
with the local enforcement agency, unless otherwise authorized
by a locally adopted ordinance, so that registration can only
be required by the local enforcement agency if the community
food producer or gleaner does not meet any of the following
conditions:
a. Produce is sold on the premises controlled by
the community food producer;
b. Produce is donated to a food bank or food
kitchen that is registered or permitted by a federal,
state, or local health agency; or
c. Produce is sold in a food facility permitted
by a federal, state, or local health agency.
FISCAL
EFFECT : According to the Assembly Appropriations Committee,
this bill would result in negligible state costs. The cost
impact on local environmental health departments who enforce
food safety standards in their jurisdictions should also be
negligible, as this expansion of the types of facilities a
community food producer or gleaner can sell to is not expected
to materially impact local food safety regulatory activities.
Current law provides for full cost recovery if local
environmental health departments are required to intervene based
on public complaint or food illness recalls.
PRIOR
VOTES :
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|Assembly Floor: |62 - 10 |
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|Assembly Appropriations Committee: |15 - 0 |
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AB 234 (Gordon) Page 4 of ?
|Assembly Health Committee: |16 - 1 |
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COMMENTS :
1)Author's statement. According to the author, this bill is
needed because even though the Governor signed AB 1990
(Gordon, Chapter 580, Statutes of 2014) to allow community
food producers or gleaners to engage in direct sales of
produce to the public, there were concerns that AB 1990 would
inadvertently limit the existing paths for producers and
gleaners to sell locally. Therefore, this bill clarifies and
expands on AB 1990 by providing explicit clarification as to
what entities community food producers are allowed to sell or
provide whole uncut fruit, vegetables or unrefrigerated shell
eggs.
2)Direct Marketing Ad Hoc Committee report. CDFA convened a
Direct Marketing Ad Hoc Committee to review and analyze the
various business functions of the Direct Marketing Program
within CDFA from October 2011 through September 2012. The
Direct Marketing Program provides opportunities for California
farmers to market their products directly to consumers with
exemptions from minimum size, labeling, standard pack, and
container requirements. The Direct Marketing Program is
intended to provide a viable channel for California farmers to
market their agricultural products directly to the consumer,
thereby providing a significant source of revenue for
participating farmers. The most common form of direct
marketing is through certified farmers' markets, but also
includes farm stands, field retail stands and farm stands, and
subscription-based community-supported agriculture (CSA)
programs.
According to the report:
"Produce from farms in California is considered to be from
"approved sources" pursuant to the California Health and
Safety Code. However, there may generally be no specific
food safety oversight by any regulatory agency except where
the product or commodity is covered under a marketing order
such as the Leafy Green Marketing Agreement. Concern over
food safety has recently been elevated with the rapid
increase in small scale farming operations such as
community and backyard gardens. Because California law does
not define a "small farm" there is no clear delineation of
AB 234 (Gordon) Page 5 of ?
where food safety oversight begins and ends. Local
environmental health officers and county agricultural
commissioners are expected to provide guidance and
oversight of these small scale operations in some cases.
Temperature control is also a food safety concern when
potentially hazardous foods require temperature control for
safety."
The Ad Hoc Committee included a Gardens Subcommittee which
looked at culinary, school, community, victory, and other
small-scale plots used for growing fresh fruits and
vegetables. According to the report, due to issues concerning
land use, zoning, and food safety requirements, several local
agencies have started to formalize an approval process to
allow these gardens to grow, donate, and sell the produce
grown. The subcommittee determined that "the sale of produce
from these gardens should be regulated in a manner consistent
with CSAs and retail field stands or farm stands under the
CRFC." The subcommittee recommended that when the products of
these gardens enter the stream of commerce, registration and
self-certification should be mandated for BMP and good
agricultural practices (GAP). The subcommittee encouraged
CDFA, CDPH, and local and environmental health agencies to
collaborate in the development of web-based information on
BMPs/GAPs for the production, distribution, and consumption of
fruits and vegetables grown in these gardens. Finally, the
subcommittee stated that if the home garden sells the produce
off-site at a farmer's market or to local restaurants, the
consumer cannot see firsthand under what conditions the
produce is grown, and the garden operator should be subject to
registration and certification of good growing practices.
3)Concern from community gleaning programs. Following the
passage of AB 1990 last year, there has been concern expressed
by community gleaning programs on the impact of this new law
on programs that collect fresh produce and donate to
charitable organizations. These concerns were detailed in a
white paper prepared by Petaluma Bounty, which describes
itself as a community-based nonprofit that is helping people
to grow their own healthy food, redistributing surplus food,
and providing affordable fresh food to low-income families and
seniors. According to Petaluma Bounty, decentralized gleaning
and food recovery efforts exist because they supplement
emergency food systems by collecting and distributing small
amounts of locally grown, highly perishable produce that is
AB 234 (Gordon) Page 6 of ?
impractical and inefficient for food banks to consider. While
the law permits gleaners to provide fruits and vegetables
directly to the public or to food facilities, it does require
this produce to come from approved sources, and to be labeled
with the name and address of the community food producer. It
is these requirements that are of concern to Petaluma Bounty -
the requirement for traceability, and that the food come from
an approved source, which means that it was grown or produced
in compliance with all applicable federal, state, or local
laws, regulations, and food safety guidelines issued by a
regulatory agency. Petaluma Bounty states that these
requirements do not work well for community gleaning efforts
because of the small amounts of non-uniform batches of produce
trickling in from across the community, multiple growers using
a wide array of growing practices, volunteer workforces, and
suppliers/donors motivated by a moral imperative and goodwill.
While acknowledging that the goal of these requirements is
safe food, Petaluma Bounty questions whether there are other
ways to promote safe food that won't negatively impact the
volunteer gleaning movement and potentially undermine legal
protections provided by the Good Samaritan Food Donation Act.
It is important to note that the concerns expressed by Petaluma
Bounty are primarily directed at last year's AB 1990, which
this bill is amending. Recent amendments to this bill
included an effort to ease donation to food banks by ensuring
that gleaners and community food producers who donate to food
banks would not have to register with a local enforcement
agency; however, these amendments did not remove the
requirement that the produce meet "approved source"
requirements, or remove the requirement for traceability.
4)Federal Good Samaritan Food Donation Act. In response to the
concerns of community gleaners such as Petaluma Bounty, the
California Association of Environmental Health Administrators,
which is sponsoring this bill, has pointed to the federal Good
Samaritan Food Donation Act (Act) as providing some protection
to community gleaning operations. This Act states that a "
person or gleaner shall not be subject to civil or criminal
liability arising from the nature, age, packaging, or
condition of apparently wholesome food or an apparently fit
grocery product that the person or gleaner donates in good
faith to a nonprofit organization for ultimate distribution to
needy individuals." The Act specifies that this protection
does not apply to an injury or death that resulted from gross
AB 234 (Gordon) Page 7 of ?
negligence or intentional misconduct on the part of the
gleaner. However, the act also contains a provision that
specifies that it does not supercede state or local health
regulations. It is unclear whether gleaners who fail to adhere
to California's law, such as the requirement that gleaners
only provide food from approved sources, would still be
protected under the Act.
5)Related legislation. AB 226 (Atkins) would establish
"fishermen's markets" as a new category of food facility that
would sell only raw fresh or fresh-frozen fish or raw edible
aquatic plants, caught or harvested by California-licensed
fishermen or California-registered aquaculturists, and
establishes requirements for fishermen's markets. AB 226 is
also set for hearing on June 24, 2015, in this committee.
AB 143 (Wood) would extend an exemption from food facility
regulation, that currently exists for breweries, to enable
wineries to offer prepackaged non-potentially hazardous food.
AB 143 passed the Senate Health Committee by a vote of 6-3 on
June 10, 2015.
6)Prior legislation. AB 1990 (Gordon, Chapter 580, Statutes of
2014), permitted a "community food producer," defined as a
producer of agricultural products on land that is not zoned
for agricultural use, and "gleaners," as defined, to sell
whole uncut fruits or vegetables, or unrefrigerated shell
eggs, directly to the public, including restaurants, if the
community food producer or gleaner follows certain
requirements. The Governor issued the following statement when
signing this bill into law: "I am signing Assembly Bill 1990
which allows gleaners and community food producers to engage
in direct sales of produce to the public. There is some
concern that AB 1990 would inadvertently limit the existing
paths for producers and gleaners to sell locally. This is not
my intent. The language in this bill is clearly expansive, not
restrictive.
AB 2539 (Ting, Chapter 907, Statutes of 2014), made various
changes to the rules governing certified farmers' markets,
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.
AB 234 (Gordon) Page 8 of ?
SB 144 (Runner, Chapter 23, Statutes of 2006), established the
CRFC in order to create uniformity between California's retail
food safety laws and those of other states, as well as to
enhance food safety laws based on the best available science.
AB 224 (Gordon, Chapter 404, Statutes of 2013), defined CSA
within the direct marketing program regulated by the CDFA,
established regulatory parameters, and required CSA
registration fees to fund administration and related
programmatic costs, as specified.
AB 1616 (Gatto, Chapter 415, Statutes of 2012), provided a
regulatory framework for the production in home kitchens of
food for sale, referred to as cottage food operations.
AB 2168 (Jones, Chapter 447, Statutes of 2008), expanded the
definition of direct marketing to include farm stands, field
retail stands, and other forms of direct marketing, revised
related definitions, and authorized CDFA to adopt regulations
to regulate direct marketing, as specified.
7)Support. This bill is sponsored by the California Association
of Environmental Health Administrators (CAEHA), which states
that the local agricultural movement is experiencing
burgeoning popularity, and California has become a trailblazer
in the progressive food and farm movement. Additionally, there
has been a dramatic growth in a wide range of community and
urban gardens, as one form of locally produced food. CAEHA
states that lack of regulatory certainty has thwarted the
legitimate expansion of some of these operations, and the
absence of clear food production and safety guidance for these
micro-farms may be endangering public health. CAEHA states
that AB 1990 from last year reduced demands on local
governments to adopt a patchwork quilt of individual local
ordinances, and provided a statewide set of best management
practices consistent with recently enacted cottage food law
and community supported agriculture laws. CAEHA states that to
remedy the concern expressed in Governor Brown's signing
statement of AB 1990 that it might inadvertently limit the
existing paths for producers and gleaners to sell locally,
this bill was introduced to explicitly allow produce to be
sold at all retail food facilities by striking the word
"restaurant" and replacing it with "food facility."
Roots of Changes states in support that enabling more avenues
AB 234 (Gordon) Page 9 of ?
for direct sales by community members is sound public policy
given that almost a quarter of Californians are still below
the federal poverty level, and research consistently shows
that low-income people are more likely to be overweight and
obese. The California Alliance with Family Farmers states that
this bill extends the right to sell whole produce and shell
eggs to any food facility, not just restaurants, which will
allow urban gardens to sell produce and shell eggs to stores.
8)Oppose unless amended. This bill is opposed by the
Association of California Egg Farmers (ACEF) unless amended to
remove all references to "unrefrigerated shell eggs." ACEF
states that when a food safety issue arises, all egg farmers
suffer. In 2010 when there was a recall of eggs, sales slumped
significantly for all eggs in California. ACEF states that
when egg farmers want to sell their products to restaurants
and stores, meeting the basic food safety standards is
paramount. ACEF states that this bill provides an exemption
based on where eggs are farmed, not how or by meeting specific
standards, and that it must oppose this bill unless eggs are
removed from the bill.
SUPPORT AND OPPOSITION :
Support: California Association of Environmental Health
Administrators (sponsor)
Community Alliance with Family Farmers
Roots of Change
Oppose: Association of California Egg Farmers (unless amended)
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