BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 234| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 234 Author: Gordon (D) Amended: 6/9/15 in Senate Vote: 21 SENATE HEALTH COMMITTEE: 8-0, 6/24/15 AYES: Hernandez, Nguyen, Mitchell, Monning, Nielsen, Pan, Roth, Wolk NO VOTE RECORDED: Hall SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 ASSEMBLY FLOOR: 62-10, 5/11/15 - See last page for vote SUBJECT: Food: sale SOURCE: California Association of Environmental Health Administrators DIGEST: This bill 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. ANALYSIS: Existing law: AB 234 Page 2 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. 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 AB 234 Page 3 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 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. AB 234 Page 4 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 Page 5 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 AB 234 Page 6 amounts of locally grown, highly perishable produce that is 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 AB 234 Page 7 needy individuals." The Act specifies that this protection does not apply to an injury or death that resulted from gross 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. Related Legislation AB 226 (Atkins, 2015) establishes "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 set for hearing on July 13, 2015, in the Senate Appropriations Committee. AB 143 (Wood, 2015) extends an exemption from food facility regulation, that currently exists for breweries, to enable wineries to offer prepackaged non-potentially hazardous food. AB 143 is currently in Engrossing and Enrolling. 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, AB 234 Page 8 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. 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes SUPPORT: (Verified7/6/15) California Association of Environmental Health Administrators (source) Community Alliance with Family Farmers Roots of Change OPPOSITION: (Verified7/6/15) Association of California Egg Farmers AB 234 Page 9 ARGUMENTS IN 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 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. ARGUMENTS IN OPPOSITION: 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 AB 234 Page 10 eggs are farmed, not how or by meeting specific standards, and that it must oppose this bill unless eggs are removed from the bill. ASSEMBLY FLOOR: 62-10, 5/11/15 AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Perea, Rendon, Rodriguez, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Weber, Wilk, Williams, Wood NOES: Travis Allen, Brough, Chávez, Gray, Grove, Harper, Mathis, Melendez, Olsen, Salas NO VOTE RECORDED: Bigelow, Beth Gaines, Jones, Quirk, Ridley-Thomas, Wagner, Waldron, Atkins Prepared by:Vince Marchand / HEALTH / 8/20/15 14:03:28 **** END ****