BILL ANALYSIS Ó
AB 820
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Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON AGRICULTURE
Henry T. Perea, Chair
AB 820
(Mark Stone) - As Amended April 22, 2015
SUBJECT: Fish and shellfish: labeling and identification.
SUMMARY: This bill requires all fish and shellfish sold in
California for human consumption to be clearly labeled at the point
of sale, whether they are wild caught or farm raised. Specifically,
this bill:
1)Declares legislative intent to provide funding for: 1) spot
inspection of all sellers of fish or shellfish at the final point
of sale to verify that the label is truthful, 2) further
investigation; and, 3) DNA testing of samples as a result of an
investigation or consumer complaint.
2)Requires that Pacific red snapper not be used as an alternative
name for the following fish:
a) Sebastes entomelas (widow rockfish).
b) Sebastes flavidus (yellowtail rockfish).
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c) Sebastes goodei (chilipepper).
d) Sebastes jordani (shorbelly rockfish).
e) Sebastes levis (cowcod).
f) Sebastes melanops (black rockfish).
g) Sebastes miniatus (vermillion rockfish).
h) Sebastes ovalis (speckled rockfish).
i) Sebastes paucispinis (bocaccio).
j) Sebastes pinniger (canary rockfish).
aa) Sebastes ruberrimus (yelloweye rockfish).
bb) Sebastes rufus (bank rockfish).
cc) Sebastes serranoides (olive rockfish).
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3)Requires that Butter fish not be used as an alternative name for
the Anoplopoma fimbria (sablefish).
4)Requires any fresh, frozen, or processed fish or shellfish (fish
and shellfish) and shellfish sold or offered for sale in California
for human consumption by any restaurant, retailer, wholesaler,
distributor, processor, or packager,(sellers) to be clearly labeled
at the point of sale, whether they are wild caught or farm raised.
5)Defines processed, for purposes of this bill, as cooking, baking,
heating, drying, mixing, grinding, churning, separating,
extracting, cutting, fermenting, eviscerating, preserving,
dehydrating, freezing, or otherwise manufacturing, and includes
packaging, canning, jarring, or otherwise enclosing food in a
container.
6)Provides that if a fish and shellfish seller can show they acted in
reasonable reliance on the fish and shellfish label and invoice,
they are not in violation of branding.
a) Provides that once a fish and shellfish seller proves
reasonable reliance on the fish and shellfish label and invoice,
that the burden of proof for a violation shifts to the previous
supplier in the supply chain until the violator is identified.
7)Declares legislative intent to increase penalties for violation of
fish and shellfish mislabeling laws.
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8)Requires any retail food facility that sells or offers for sale any
fish or shellfish for human consumption to clearly label at the
point of sale whether they are wild caught or farm raised, and not
knowingly misidentify whether the fish or shellfish is wild caught
or farm raised.
9)Defines processed, for purposes of this bill, as cooking, baking,
heating, drying, mixing, grinding, churning, separating,
extracting, cutting, fermenting, eviscerating, preserving,
dehydrating, freezing, or otherwise manufacturing, and includes
packaging, canning, jarring, or otherwise enclosing food in a
container.
10)Provides that if a retail food facility or restaurant that sells
fish or shellfish shows they acted in reasonable reliance on the
fish and shellfish label and invoice, they are not in violation of
mislabeling.
a) Provides that once a retail food facility or restaurant
proves reasonable reliance on the fish and shellfish label and
invoice, that the burden of proof for a violation shift to the
previous supplier in the supply chain until the violator is
identified.
EXISTING LAW:
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1)Establishes the Sherman Food, Drug, and Cosmetic Law (Sherman Act),
administered by California Department of Public Health (CDPH), to
regulate the contents, packaging, labeling, and advertising of
food, drugs, and cosmetics.
2)States any food misbranded if its' labeling is false or misleading
in any particular way. States any food misbranded if it is offered
for sale under the name of another food.
3)States any food for which no standard of identity exists as
misbranded unless it bears a label clearly stating the common or
usual name of the food.
4)Requires any label of any retail cut of beef, veal, lamb, or pork
held for sale , as specified, to clearly identify the species and
the primal cut from which it is derived, and the retail name.
Exempts ground beef, boneless stewing meat, cubed steaks, sausage
and soup-bones from this requirement.
5)Permits CDPH to adopt regulations that name and describe the
characteristics of salmon and any other fish or other seafood it
considers appropriate. Requires CDPH to consult with the
Department of Fish and Game (CDFG) and other stakeholders, as
specified, and prohibits CDPH from adopting any regulation that
conflicts with the common name of any fish designated by CDFG, as
specified.
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6)Establishes misdemeanor penalties for violations of the Sherman
Act, including the misbranding of food. Penalties may include up
to a year in the county jail and fines of up to $1,000, or up to
$10,000 for repeated violations, as specified.
7)Permits CDPH, in addition to the misdemeanor penalties, to assess
civil penalties for violations of the Sherman Act of up to $1,000
per day.
8)Requires the attorney general, any district attorney, or any city
attorney to whom CDPH reports any violation of the Sherman Act, to
begin appropriate proceedings in the proper court. Allows CDPH to
issue written notice or warning for minor violations, as specified.
9)Allows, in the California code of regulations, the 13 varieties of
fish (see point 2) in summary above to use the common market name
Pacific red snapper, and Anoplopoma fimbria (sablefish) to use the
common name Butterfish.
EXISTING FEDERAL LAW:
1)Establishes the Federal Food, Drug, and Cosmetic Act, enforced by
the federal Food and Drug Administration (FDA), to regulate the
safety of food, drugs, and cosmetics.
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2)Deems food misbranded if, among other reasons, its labeling is
false or misleading in any particular way, if it is offered for
sale under the name of another food, or it is an imitation of
another food without being labeled as imitation.
3)States in FDA Compliance Policy Guides: The labeling or sale of any
fish other than Lutjanus campechanus as "red snapper" constitutes a
misbranding in violation of the federal Food, Drug, and Cosmetic
Act.
FISCAL EFFECT: Unknown. This bill is keyed Fiscal by Legislative
Counsel.
COMMENTS: In 2013, Oceana released a two year study on fish sold for
retail in San Francisco, Monterey, and Los Angeles. The study found
that 90% of sushi samples were mislabeled in Los Angeles County, 38%
of all fish were mislabeled in Northern California, and with 52% of
sea food tested being mislabeled, southern California leads the
nation in mislabeled fish.
Mislabeling defrauds consumers, restaurants, and fishermen when a
more expensive fish is ordered and then is substituted with a less
expensive, less desirable fish. Restaurants are victims of fraud
when fish distributors sell falsely labeled fish. Fraud is unfair to
fishermen who fish responsibly and lose profits when fish caught
unsustainably are sold in their place.
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Furthermore, according to the author, mislabeling fish can lead to
the consumption of seafood that is unhealthy and dangerous; specific
fish can have unhealthy levels of mercury. Additionally, shellfish
can be illegally harvested from areas that have been deemed too
polluted for commercial fishing. Eating mislabeled fish can lead to
potential health risks, especially to vulnerable populations, such as
children and pregnant women.
Under current federal and state law, it is already illegal to
mislabel fish or shellfish. As the recent Oceana study shows,
seafood mislabeling is not strongly enforced. This bill proposes to
address this issue by strengthening enforcement of existing state
laws to combat seafood fraud by providing additional funding for
retail spot inspections at the final point of sale, and by increasing
penalties for seafood mislabeling. The sponsor states this bill will
improve transparency in the marketplace by requiring the
identification of seafood products as wild-caught or farm-raised.
This bill does add protection for entities that unknowingly sells
mislabeled fish, if the entities have documentation to show the
product was mislabeled when purchased.
One of the most mislabeled fish identified in Oceana's study was red
snapper. In California, the study discovered none of the snapper
tested was even from the snapper family. The study found the
majority of tested fish labeled as snapper were actually rockfish,
tilapia, or seabreams. Currently California regulations allow 13
different species of fish sold within the state to be labeled Pacific
red snapper. In most other states "red snapper" refers to a specific
reef species, Lutjanus campechanus, which is only found in the
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western Atlantic and Gulf of Mexico. FDA policy is that labeling
rockfish as "red snapper" constitutes a misbranding in violation of
the Federal labeling laws. By prohibiting the identification of
rockfish as Pacific red snapper, this bill will bring California in
alignment with FDA policy, which California defers to for most other
seafood product identification, and will provide transparency to
California consumers, state supporters.
Opponents object to the new requirement that restaurants identify
whether the fish or shellfish was wild caught or farm raised.
According to opponents, this is information that any patron may
request before choosing to select an eating establishment or before
choosing to order a particular item in an eating establishment. Many
restaurants do this on their own for marketing or other purposes and
that is the best way to approach this particular issue.
Opponents state this bill also prohibits the use of common market
names allowed by the California Fish & Game Commission since the
1970s, including the term Pacific red snapper. The California Fish &
Game Commission, by regulation, allows the name Pacific red snapper
to assist in the marketing of 13 species of rockfish which allowed
thousands of grocers and restaurants to be able to group 13 species
of fish into one name, recognized by millions of consumers. This is
a drastic and unclear change, insist opponents.
REGISTERED SUPPORT / OPPOSITION:
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Support
Oceana (Sponsor)
Anaheim Convention Center
Environment California
Friends of the Earth
Monterey Coastkeeper
Passionfish Restaurant
Pier 23 Café
Shark Stewards
Sierra Club, California
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The Otter Project
WILDCOAST
Opposition
California Fisheries & Seafood Institute
California Restaurant Association
Grocery Manufactures Association
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Analysis Prepared by:Victor Francovich / AGRI. / (916) 319-2084