BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:   April 19, 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  
          authorizes the use of 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)AUTHOR'S AMENDMENTS.  This bill was heard in this Committee on  
            April 12, 2016 but failed passage.  At that time, the author  
            has agreed to amend this bill to do the following: 


             a)   Remove the requirements for retail food facilities to  
               label food that are sold or offered for sale with an  
               elevated risk date; and,


             b)   Clarified that the retail food facilities could sell,  
               donation or use non-potentially hazardous food after the  
               quality date has passed.


          7)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. 









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          8)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


          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


          Castro Valley Sanitary District










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          Catholic Charities of the Diocese of Stockton


          City of Palo Alto


          City of Sunnyvale


          Clean Water Action


          Community Alliance with Family Farmers


          Environment California


          Environmental Working Group


          Fresno Metro Ministry


          Harvard Food Law and Policy Clinic


          Inika Small Earth, Inc.


          LAANE


          Los Angeles Food Policy Council


          Marin Sanitary Service










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          Napa Recycling & Waste Services


          Natural Resources Defense Council


          Northern California Recycling Association


          Pesticide Action Network


          San Francisco Department of the Environment


          Solana Center for Environmental Innovation


          Solid Waste Association of North America


          Sonoma County Waste Management Agency


          StopWaste


          Tri-CED Community Recycling


          Zanker Recycling


          Several Individuals




          Opposition








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          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