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  








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               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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