BILL ANALYSIS Ó
AB 2725
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Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON HEALTH
Jim Wood, Chair
AB 2725
Chiu - As Amended April 5, 2016
SUBJECT: Food manufacturers: food facilities: labels.
SUMMARY: Requires food for sale to include a quality date and
an elevated risk date on specified food products. Specifically,
this bill:
1)Requires, on or before July 1, 2017, food for sale or offered
for sale in the state that includes a quality date on food to
comply with the following:
a) The quality date to be displayed with the uniform phrase
"best if used by" unless and until the Department of Public
Health (DPH) specifies a different uniform term.
Authorizes DPH to modify the guidelines, after consulting
with stakeholders in an open public process; and,
b) The quality date to be expressed by the first three
letters of the month followed by the numeral designating
the appropriate calendar day and year or by expressing the
calendar month numerically followed by a numeral
designating the calendar day and a numeral designating the
year.
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2)Authorizes DPH to adopt regulations modifying the guidelines
in 1) above, after consulting with stakeholders in an open
public process, in accordance with the Administrative
Procedure Act.
3)Defines quality date as the date indicated on the label
affixed to the packaging or container of food that
communicates to consumers the date after which the food's
quality may begin to deteriorate.
4) Prohibits a retail food facility, on or after July 1, 2017,
from selling or offering for sale a food item that is not
labeled pursuant to 6) below.
5)Authorizes a retail food facility to donate a food item that
is not labeled pursuant to the requirements of this bill.
States that this bill does not prohibit and shall not be
construed to discourage the sale, donation, or use of food
after the food's quality date has passed.
6)Authorizes a food manufacturer to include an elevated risk
date on products that require time/temperature control for
safety (TCS), as specified.
7)Requires, on and after July 1, 2017, food for sale or offered
for sale that includes an elevated risk date on the product to
meet both of the following requirements:
a) The elevated risk date to be displayed with the uniform
phrase "expires on," unless and until DPH specifies a
different uniform phrase; and,
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b) The date to be expressed by the first three letters of
the month, followed by the numerals designating the
appropriate calendar day and year or by expressing the
calendar month numerically followed by numerals designating
the calendar day and year.
8)Authorizes DPH to adopt regulations adding or exempting foods
from the requirements of 7) above.
9)Defines an elevated risk date as the date indicated on the
label affixed to the packaging or container after which there
is a high level of risk associated with the consumption of the
food product.
10)Provides that nothing in this bill can be construed to create
a legal liability for the retail food provider to ensure that
the manufacturer has properly labeled the food product.
11)Requires DPH, on or before December 1, 2017, to provide
consumer guidance on the meaning of the quality and safety
date food labels.
12)Prohibits a retail food facility from selling or offering for
sale a food item that is labeled with a "sell by" date, or any
date in the labeling of food that is intended to communicate
primarily to a distributor or retailer for purposes of stock
rotation that is not a quality date or an elevated-risk date.
States that this does not prohibit the use of sell-by dates
that are presented in a coded format that is not easily
readable by consumers.
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EXISTING LAW:
1)Establishes the Sherman Food, Drug and Cosmetic Law,
administered by DPH to regulate food, drugs, and cosmetics in
California.
2)Establishes the California Retail Food Code (CRFC),
administered by DPH, to govern all aspects of retail food
safety and sanitation in California and makes local
environmental health departments (LEHDs) primarily responsible
for enforcement through local food safety inspection programs.
3)Defines a retail food facility as an operation that stores,
prepares, packages, serves, vends, or otherwise provides food
for human consumption at the retail level, including, but not
limited to, public and private school cafeterias, restricted
food service facilities (such as bed and breakfast inns and
agricultural homestays), licensed health care facilities,
commissaries, temporary food facilities, vending machines,
certified farmers markets, as specified, and, farm stands, as
specified.
4)Excludes from the definition of food facility a cooperative
arrangement, as specified, a private home, cottage food
operation, as specified, church, non-profit and for-profit
entities under certain conditions, premises set aside for wine
tasting, as specified, a commercial food processing plant, a
child day care facility, a community care facility, and a
residential care facility for the elderly.
5)Authorizes LEHDs to inspect food facilities, issue and suspend
permits, conduct hearings, take samples or other evidence,
impound food or equipment, and issue inspection reports.
6)Prohibits any person from engaging in the manufacture,
packing, or holding of any processed food in California unless
the person has a valid processed food registration from DPH.
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FISCAL EFFECT: This bill has not yet been analyzed by a fiscal
committee.
COMMENTS:
1)PURPOSE OF THIS BILL. According to the author, improving date
labeling policies and practices can decrease consumer
confusion, which will not only reduce food waste, but also
improve food safety. Date labels on food come in a variety of
forms, including "use by," "best before," "sell by" and
"freshest by" dates, yet these simple markers are both poorly
understood and surprisingly under-regulated, such that their
meanings and timeframes are generally not defined in law.
This bill will standardize the language of date labels on
food. Creating standard phrases with definitions is the
foundation for educating consumers on the meaning of the
labels, leading to less premature waste of food.
2)BACKGROUND.
a) Food dating. According to the Food Safety and
Inspection Services (FSIS) of the United States Department
of Agriculture (USDA), with the exception of infant formula
which requires a "use by" date on the label, there is no
uniform or universally accepted system for food dating in
United States. Open dating (use of a calendar date as
opposed to a code) on a food product is a date stamped on a
product's package to help the store determine how long to
display the product for sale, and assist the purchaser in
determining the time limit to purchase or use the product
at its best quality. If a calendar date is used, it must
include both the month and day of the month (and year for
shelf-stable and frozen products). If a calendar date is
shown, immediately adjacent to the date must be a phrase
explaining the meaning of that date such as "sell by" or
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"use before." Additionally, canned food must have a
packing code to enable tracking of the product in
interstate commerce. This enables manufacturers to rotate
their stock as well as to locate their products in the
event of a recall. The codes, which appear as a series of
letters and/or numbers, might refer to the date or time of
manufacture, and are not 'use by" dates. Canned foods are
safe indefinitely as long as they are not exposed to
freezing temperatures or temperatures above 90 F.
b) Type of dates. The FSIS Website defines the following
dating labels:
i) Sell-By: date tells the store how long to display
the product for sale. A consumer must buy the product
before the date expires;
ii) Best if used by (or before): date is recommended
for best flavor or quality. It is not a purchase or
safety date;
iii) Use by: date is the last date recommended for the
use of the product while at peak quality. The date has
been determined by the manufacturer of the product; and
iv) Closed or coded dates: these are packing numbers
for use by the manufacturer.
According to the FSIS, except for "use-by" dates, product
dates don't always pertain to home storage and use after
purchase. "Use-by" dates usually refer to best quality and
are not safety dates. Even if the date expires during home
storage, a product should be safe, wholesome and of good
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quality if handled properly. If a product has a "use-by"
date, follow that date.
If foods are mishandled, however, foodborne bacteria can
grow and, if pathogens are present, cause foodborne illness
- before or after the date on the package. For example, if
hot dogs are taken to a picnic and left out several hours,
they will not be safe if used thereafter, even if the date
hasn't expired.
Other examples of potential mishandling are products that
have been: defrosted at room temperature more than two
hours; cross contaminated; or, handled by people who don't
practice good sanitation.
c) Egg Safety and Quality Management Program (ESQM). ESQM
regulates chicken shell eggs and egg products produced,
shipped, or sold in California. For purposes of labeling,
consumer-date packages or containers of eggs must state all
of the following: name, address, zip code, size, grade,
quantity, and the words "keep refrigerated," and either the
USDA plant of origin code number, the USDA Shell egg
surveillance number or California state handler code, sell
by date, Shell Egg food Safety Compliant, Julian date of
pack, as specified.
d) TCS. This bill authorizes a manufacturer to include an
elevated risk date on products that require TCS, as defined
by the United States Food and Drug Administration (FDA)
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Food Code. The FDA Food Code defines TCS as food that
requires time and temperature control to limit pathogenic
microorganism growth or toxin formation. It includes an
animal food that is raw or heat-treated, a plant food that
is heat-treated or consists of raw seed sprouts, cut
melons, cut leafy greens, cut tomatoes or mixtures of cut
tomatoes that are not modified in a way so that they are
unable to support pathogenic microorganism growth or toxin
formation, or garlic-in-oil mixtures that are not modified
in a way so that they are unable to support pathogenic
microorganism growth or toxin formation. The following are
examples of foods that are considered potentially hazardous
foods and require proper control of time and temperature:
milk and dairy products, eggs (except those treated to
eliminate microorganisms), meat (beef, pork and lamb),
poultry, fish and shellfish, baked potatoes, heat-treated
plant foods (rice, beans, and vegetables), tofu and other
soy proteins, sprouts and sprout seeds, sliced melons, and
cut tomatoes
e) Food Waste. Background information provided to the
Committee by the author and sponsor of this bill, including
an issue brief entitled "The Dating Game: How Confusing
Labels Land Billions of Pounds of Food in the Trash,"
points out that the current system of expiration dates
misleads consumers to believe they must discard food in
order to protect their own safety. About 40% of food is
never eaten in the United States. Producing that uneaten
food accounts for an estimated 25% of the water and 4% of
oil consumed in the United States and putting it in the
garbage makes food the number one product filling up
landfills, where it produces the powerful greenhouse gas
methane. A more standardized, less confusing date labeling
system across the U.S. would help consumers maximize the
value of their food budgets while eliminating waste of food
and resources. In "A Roadmap to Reduce Food Waste by 20
Percent" nearly 80% of food waste come from perishable
foods, which include prepared fresh deli items, meats,
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fruits, and vegetables, seafood, milk and dairy, and some
grain products such as bread and bakery items.
Non-perishable foods (pastas, canned goods, and
highly-processed, shelf-stable products), are generally
wasted less because they don't spoil as easily.
3)PREVIOUS LEGISLATION. AB 1826 (Chesbro), Chapter 727,
Statutes of 2014, requires a business that generates a
specified amount of organic waste per week to arrange for
recycling services for that organic waste, in a specified
manner.
4)SUPPORT. Californians Against Waste, one of the sponsors of
this bill, states that this bill will standardize the language
of date labels on food, creating one standard label for
communicating product quality, and one for indicating if a
product carries increased risk after that date. This will
give consumers a better understanding of what these labels
mean, leading not only to less food going in the trash but
also increased consumer confidence in the safety of their
food. The Natural Resources Defense Council states that
misinterpretation of the date labels on foods is a key factor
leading to food waste in American households. The lack of
standardization around date labels makes it impossible to
educate consumers on their meaning. This bill educates
consumers on the meaning of food labels which would lead to
less premature waste of food.
5)OPPOSITION. The California Chamber of Commerce, California
Manufacturers & Technology Association, California Retailers
Association, California Grocers Association, and the
California League of Food Processors state that this bill
imposes a costly and confusing new food warning program and
that a "California only" labeling scheme will not help
consumers or waste reduction.
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6)POLICY COMMENT. This bill requires retail food facilities to
label food products that they sell to include an elevated risk
date. Existing law defines retail food facilities to include
public and private school cafeterias, restricted food service
facilities (such as bed and breakfast inns and agricultural
homestays), licensed health care facilities, commissaries,
temporary food facilities, vending machines, certified farmers
markets, and farm stands. These facilities must already
comply with the CRFC which includes requirements on how to
maintain potentially hazardous foods and comply with specified
time and temperature requirements. Additionally, the nature
of these facilities may make it difficult to comply with the
labeling requirements of this bill. Similarly, this bill
appears to authorize a retail food facility to sell, donate,
or use food even after the food's quality date has passed.
Although these provisions are well-intentioned, they appear
inconsistent with the purposes of the CRFC. As this bill
moves forward, the Committee may wish to recommend to the
author to convene a stakeholder meeting with retail food
facility stakeholders to determine how these facilities could
comply with the requirements of this bill in a way that is
consistent with the CRFC.
7)DOUBLE REFERRAL. This bill has been double referred by the
Assembly Rules Committee. Upon passage out of this Committee,
it will be referred to the Assembly Business and Professions
Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
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Californians Against Waste (co-sponsor)
Natural Resources Defense Council (co-sponsor)
AZUL
California Association of Local Conservation Corps.
California League of Conservation Voters
California Compost Coalition
California Public Interest Research Group
Catholic Charities of the Diocese of Stockton
City of Sunnyvale
Clean Water Action
Community Alliance with Family Farmers
Environment California
Environmental Working Group
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Harvard Food Law and Policy Clinic
Inika Small Earth, Inc.
Marin Sanitary Service
Napa Recycling & Waste Services
Natural Resources Defense Council
Northern California Recycling Association
Pesticide Action Network
Solana Center for Environmental Innovation
Solid Waste Association of North America
Sonoma County Waste Management Agency
StopWaste
Tri-CED Community Recycling
Zanker Recycling
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Several Individuals
Opposition
Agricultural Council of California
California Bean Shippers Association
California Chamber of Commerce
California Farm Bureau Federation
California Grocers Association
California League of Food Processor
California Manufacturers & Technology Associ9ation
California Pear Growers Association
California Retailers Association
Grocery Manufacturers Association
North American Meat Institute
Analysis Prepared by:Rosielyn Pulmano / HEALTH / (916) 319-2097