Amended in Senate April 6, 2015

Senate Bill No. 203

Introduced by Senator Monning

(Coauthors: Senators begin insert Hancock, end insert Leno, Mitchell, Pan, and Pavley)

(Coauthors: Assembly Members Chiu, begin insert McCarty, end insert Williams, and Wood)

February 11, 2015

An act to add Article 15 (commencing with Section 111224) to Chapter 5 of Part 5 of Division 104 of the Health and Safety Code, relating to public health.

LEGISLATIVE COUNSEL’S DIGEST

SB 203, as amended, Monning. Sugar-sweetened beverages: safety warnings.

(1) Existing federal law, the begin delete federal end delete begin insert Federal end insert Food, Drug, and Cosmetic Act, regulates, among other things, the quality and packaging of foods introduced or delivered for introduction into interstate commerce and generally prohibits the misbranding of food. Existing federal law, the Nutrition Labeling and Education Act of 1990, governs state and local labeling requirements, including those that characterize the relationship of any nutrient specified in the labeling of food to a disease or health-related condition. Existing state law, the Sherman Food, Drug, and Cosmetic Law, generally regulates misbranded food and provides that any food is misbranded if its labeling does not conform with the requirements for nutrient content or health claims as set forth in the begin delete federal end delete begin insert Federal end insert Food, Drug, and Cosmetic Act and the regulations adopted pursuant to that federal act. Existing law requires that a food facility, as defined, make prescribed disclosures and warnings to consumers, as specified. A violation of these provisions is a crime.

Existing state law, the Pupil Nutrition, Health, and Achievement Act of 2001, also requires the sale of only certain beverages to pupils at schools. The beverages that may be sold include fruit-based and vegetable-based drinks, drinking water with no added sweetener, milk, and in middle and high schools, an electrolyte replacement beverage if those beverages meet certain nutritional requirements.

This bill would establish the Sugar-Sweetened Beverages Safety Warning Act, which would prohibit a person from distributing, selling, or offering for sale a sugar-sweetened beverage in a sealed beverage container, or a multipack of sugar-sweetened beverages, in this state unless the beverage container or multipack bears a safety warning, as prescribed. The bill also would require every person who owns, leases, or otherwise legally controls the premises where a vending machine or beverage dispensing machine is located, or where a sugar-sweetened beverage is sold in an unsealed container to place a specified safety warning in certain locations, including on the exterior of any vending machine that includes a sugar-sweetened beverage for sale.

(2) Under existing law, the State Department of Public Health, upon the request of a health officer, as defined, may authorize the local health department of a city, county, city and county, or local health district to enforce the provisions of the Sherman Food, Drug, and Cosmetic Law. Existing law authorizes the State Department of Public Health to assess a civil penalty against any person in an amount not to exceed $1,000 per day, except as specified. Existing law authorizes the Attorney General or any district attorney, on behalf of the State Department of Public Health, to bring an action in a superior court to grant a temporary or permanent injunction restraining a person from violating any provision of the Sherman Food, Drug, and Cosmetic Law.

This bill, commencing July 1, 2016, would provide that any violation of the provisions described in (1) above, or regulations adopted pursuant to those provisions, is punishable by a civil penalty of not less than $50, but no greater than $500.

This bill would also create the Sugar-Sweetened Beverages Safety Warning Fund for the receipt of all moneys collected for violations of those provisions. The bill would allocate moneys in this fund, upon appropriation by the Legislature, to the department for the purpose of enforcing those provisions.

The bill would make legislative findings and declarations relating to the consumption of sugar-sweetened beverages, obesity, and dental disease.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) Over the past 30 years, adult diabetes rates have nearly
tripled in the United States. Currently, begin delete one in end delete 9 begin insert percent of end insert adults
in the United States begin delete has end delete begin insert have end insert diabetes and more than one-third
have prediabetes. In California, begin insert an estimated end insert 14 percent of adults
have diabetes. Over the past 10 years, the percentage of teens
nationwide that have diabetes or prediabetes has increased from
9 percent to 23 percent. One in three children born today, including
one-half of African American and Latino children, is expected to
develop diabetes in their lifetime. Complications of diabetes
include heart disease, nerve damage, gum infections, kidney
disease, hearing impairment, blindness, amputation of toes, feet,
or legs, and increased risk of Alzheimer’s disease.

(b) Diabetes costs the state at least $24.5 billion each year in
total health care expenses and lost productivity. Average medical
expenditures for people with diabetes are 2.3 times higher than for
those without diabetes. One in three California hospital stays is
for people with diabetes. Hospital stays for patients with diabetes,
regardless of the primary diagnosis, cost $2,200 more than other
patients, which adds an extra $1.6 billion each year to California’s
hospitalization costs, including $254 million in Medi-Cal costs
alone.

(c) The prevalence of obesity in the United States has increased
dramatically over the past 30 years. In California, 60 percent of
adults are overweight or obese and adult obesity rates have nearly
tripled increasing from 8.9 percent in 1984 to 25.0 percent in 2012,
and if current trends continue, the rate is expected to increase to
46.6 percent in 2030. Nearly 40 percent of California children are
currently overweight or obese and obesity rates have tripled for
adolescents and quadrupled for 6 to 11 year olds. Although no
group has escaped the epidemic, low income and communities of
color are disproportionately affected.

(d) The obesity epidemic is of particular concern because obesity
increases the risk of diabetes, heart disease, arthritis, asthma, and
certain types of cancer. Depending on their level of obesity, from
60 percent to over 80 percent of obese adults currently suffer from
type 2 diabetes, high blood cholesterol, high blood pressure, or
other related conditions.

(e) The medical costs for people who are obese are dramatically
higher than those of normal weight. Overweight and obesity
account for $147 billion in health care costs nationally, or 9 percent
of all medical spending, with one-half of these costs paid publicly
through the Medicare and Medicaid programs.

(f) There is overwhelming evidence of the link between obesity
and the consumption of sweetened beverages, such as soft drinks,
energy drinks, sweet teas, and sports drinks. The 2010 Dietary
Guidelines for Americans recommend that everyone reduce their
intake of sugar-sweetened beverages. California adults who drink
one soda or more per day are 27 percent more likely to be
overweight or obese, regardless of income or ethnicity.

(g) According to nutrition experts, sweetened beverages, such
as soft drinks, energy drinks, sweet teas, and sports drinks, offer
little or no nutritional value, but massive quantities of added sugars.
A 20-ounce bottle of soda contains the equivalent of approximately
17 teaspoons of sugar. Yet, the American Heart Association
recommends that Americans consume no more than five to nine
teaspoons of sugar per day.

(h) Sugar-sweetened beverages are the single largest source of
added sugars in the American diet, with the average American
drinking nearly 42 gallons of sweetened beverages a year, the
equivalent of 39 pounds of extra sugar every year. Over 50 percent
of the United States population drinks one or more sugar-sweetened
beverages per day.

(i) In California, 19 percent of two to five year olds drink a
sugar-sweetened beverage each day. That number climbs to 32
percent among 6 to 11 year olds, and 65 percent among 12 to 17
year olds. Additionally, major disparities now exist between races
and ethnicities. Seventy-four percent of African American
adolescents drink at least one sugar-sweetened beverage each day,
compared to 73 percent of Latinos, 63 percent of Asians, and 56
percent of whites.

(j) Sugar-sweetened beverages are a unique contributor to excess
caloric consumption. Research shows that calories from
sugar-sweetened beverages do not satisfy hunger the way calories
from solid food or fat or protein-containing beverages, such as
those containing milk and plant-based proteins, do. As a result,
sugar-sweetened beverages tend to add to the calories people
consume rather than replace them. Drinking one or two sodas a
day increases the risk of developing type 2 diabetes by 26 percent.
Drinking just one soda a day increases an adult’s likelihood of
being overweight by 27 percent, and for children the likelihood
doubles to 55 percent.

(k) Consistent evidence shows a positive relationship between
sugar intake and dental caries (cavities) in adults and fewer caries
when sugar intake is restricted. Children who frequently consume
beverages high in sugar are at an increased risk for dental caries.
Untreated dental caries can lead to pain, infection, tooth loss, and
in severe cases, death.

(l) Evidence suggests that health warnings can increase
knowledge and reduce consumption of harmful products. Studies
show that prominent health warnings on the face of cigarette
packages can increase health knowledge, perceptions of risk, and
can promote smoking cessation of both youth and adults.

SEC. 2.  

Article 15 (commencing with Section 111224) is added
to Chapter 5 of Part 5 of Division 104 of the Health and Safety
Code, to read:

 

Article 15.  Sugar-Sweetened Beverages Safety Warning Act

 

111224.  

This article shall be known and may be cited as the
Sugar-Sweetened Beverages Safety Warning Act.

111224.05.  

It is the intent of the Legislature, by enacting this
article, to protect consumers and to promote informed purchasing
decisions by requiring a warning about the harmful health effects
that result from the consumption of drinks with added sugars.

111224.10.  

For purposes of this article, unless the context
clearly requires otherwise, the following definitions shall apply:

(a) “Animal milk” means natural liquid milk, which is secreted
by an animal and consumed by humans. For purposes of this
definition, “animal milk” includes natural milk concentrate and
dehydrated natural milk, whether or not reconstituted.

(b) “Beverage container” means any sealed or unsealed container
regardless of size or shape, including, without limitation, those
made of glass, metal, paper, plastic, or any other material or
combination of materials that is used or intended to be used to hold
a sugar-sweetened beverage for individual sale to a consumer.

(c) “Beverage dispensing machine” means any device that mixes
concentrate with any one or more other ingredients and dispenses
the resulting mixture into an unsealed container as a ready-to-drink
beverage.

(d) “Caloric sweetener” means any substance containing
calories, suitable for human consumption, that humans perceive
as sweet and includes, without limitation, sucrose, fructose,
glucose, and other sugars and fruit juice concentrates. “Caloric”
means a substance that adds calories to the diet of a person who
consumes that substance.

(e) “Concentrate” means a syrup or powder that is used or
intended to be used for mixing, compounding, or making a
sugar-sweetened beverage.

(f) “Consumer” means a person who purchases a
sugar-sweetened beverage for a purpose other than resale in the
ordinary course of business.

(g) “Department” means the State Department of Public Health,
and any agency or person lawfully designated by the department
to enforce or implement this article pursuant to Section 111020.

(h) “Distribute” means to sell or otherwise provide a product
to any person for resale in the ordinary course of business to a
consumer within this state.

(i) “Milk substitute” means a plant-based beverage in which the
principal ingredients by weight are (1) water and (2) grains, nuts,
legumes, or seeds. For purposes of this definition, “milk substitute”
includes, without limitation, almond milk, coconut milk, flax milk,
hazelnut milk, oat milk, rice milk, and soy milk.

(j) “Natural fruit juice” means the original liquid resulting from
the pressing of fruit, the liquid resulting from the reconstitution of
natural fruit juice concentrate, or the liquid resulting from the
restoration of water to dehydrated natural fruit juice.

(k) “Natural vegetable juice” means the original liquid resulting
from the pressing of vegetables, the liquid resulting from the
reconstitution of natural vegetable juice concentrate, or the liquid
resulting from the restoration of water to dehydrated natural
vegetable juice.

(l) “Person” means any natural person, partnership, cooperative
association, limited liability company, corporation, personal
representative, receiver, trustee, assignee, any other legal entity,
any city, county, city and county, district, commission, the state,
or any department, agency, or political subdivision thereof, any
interstate body, and, to the extent permitted by federal law, the
United States and its agencies and instrumentalities.

(m) “Powder” means a solid mixture with added caloric
sweetener used in making, mixing, or compounding a
sugar-sweetened beverage by mixing the powder with any one or
more other ingredients, including, without limitation, water, ice,
syrup, simple syrup, fruits, vegetables, fruit juice, or carbonation
or other gas.

(n) “Sale” or “sell” means any distribution or transfer for a
business purpose, whether or not consideration is received.

(o) “Sealed beverage container” means a beverage container
holding a beverage that is closed or sealed before being offered
for sale to a consumer.

(p) (1) “Sugar-sweetened beverage” means any sweetened
nonalcoholic beverage, carbonated or noncarbonated, begin delete sold end delete begin insert intended end insert
for human consumption that has added caloric sweeteners and
contains 75 calories or more per 12 fluid ounces. “Nonalcoholic
beverage” means any beverage that contains less than one-half of
1 percent alcohol per volume.

(2) “Sugar-sweetened beverage” does not include any of the
following:

(A) Any beverage containing 100 percent natural fruit juice or
natural vegetable juice with no added caloric sweeteners.

(B) Any begin delete liquid end delete product manufactured for any of the following
uses and commonly referred to as a “dietary aid”:

(i) An oral nutritional therapy for persons who cannot absorb
or metabolize dietary nutrients from food or beverages.

(ii) A source of necessary nutrition used as a result of a medical
condition.

(iii) An oral electrolyte solution for infants and children
formulated to prevent dehydration due to illness.

(C) Any product for consumption by infants and that is
commonly referred to as “infant formula.”

(D) Any beverage whose principal ingredient by weight is
animal milk or a milk substitute.

(q) “Syrup” means a liquid mixture with added caloric sweetener
used in making, mixing, or compounding a sugar-sweetened
beverage by mixing the syrup with any one or more other
ingredients, including, without limitation, water, ice, powder,
simple syrup, fruits, vegetables, fruit juice, vegetable juice, or
carbonation or other gas.

(r) “Unsealed beverage container” means a beverage container
into which a beverage is dispensed or poured at the business
premises where the beverage is purchased, including, without
limitation, a container for fountain drinks.

111224.15.  

(a) A person shall not distribute, sell, or offer for
sale a sugar-sweetened beverage in a sealed beverage container in
this state unless the container bears the following safety warning
and otherwise meets all of the requirements under this section:

“STATE OF CALIFORNIA SAFETY WARNING: Drinking
beverages with added sugar(s) contributes to obesity, diabetes, and
tooth decay.”

(b) (1) The safety warning required by subdivision (a) shall be
prominently displayed and readily legible under ordinary conditions
on the front of the sealed beverage container, separate and apart
from all other information, and shall be on a contrasting
background. The first five words of the safety warning required
under subdivision (a), “STATE OF CALIFORNIA SAFETY
WARNING” shall appear in capital letters. The entire safety
warning shall appear in bold type.

(2) The safety warning required under subdivision (a) shall
appear in a begin delete font end delete begin insert type end insert size and in a maximum number of characters
(i.e., letters, numbers, and marks) per inch, as follows:

(A) For beverage containers of 8 fluid ounces or less, the safety
warning shall be in script, type, or printing not smaller than 1
millimeter, and there shall be no more than 40 characters per linear
inch.

(B) For beverage containers of more than 8 fluid ounces and
less than 1 liter, the safety warning shall be in script, type, or
printing not smaller than 2 millimeters, and there shall be no more
than 25 characters per linear inch.

(C) For beverage containers of 1 liter or more, the safety warning
shall be in script, type, or printing not smaller than 3 millimeters,
and there shall be no more than 12 characters per linear inch.

(c) If the safety warning required under subdivision (a) is not
printed directly on the beverage container, the safety warning shall
be affixed to the beverage container in such a manner that it cannot
be removed without thorough application of water or other solvents.

(d) A person shall not distribute, sell, or offer for sale a
multipack of sugar-sweetened beverages in sealed beverage
containers in this state unless the multipack of beverages bears the
safety warning required under subdivision (a). The safety warning
shall be posted conspicuously on at least two sides of the multipack,
in addition to being posted on each individual sealed beverage
container.

(e) A person shall not distribute, sell, or offer for sale a
concentrate in this state unless the packaging of the concentrate,
which is intended for retail sale, bears the safety warning required
under subdivision (a). The safety warning shall be posted
conspicuously on the front of the packaging of the concentrate.

111224.20.  

(a) Every person who owns, leases, or otherwise
legally controls the premises where a vending machine or beverage
dispensing machine is located, or where a sugar-sweetened
beverage is sold in an unsealed beverage container, shall place, or
cause to be placed, a safety warning in each of the following
locations:

(1) On the exterior of any vending machine that includes a
sugar-sweetened beverage for sale.

(2) On the exterior of any beverage dispensing machine used
by a consumer to dispense a sugar-sweetened beverage through
self-service.

(3) At the point-of-purchase where any consumer purchases a
sugar-sweetened beverage in an unsealed beverage container, when
the unsealed beverage container is filled by an employee of a food
establishment rather than the consumer.

(b) The safety warning required by subdivision (a) shall contain
the following language:

“STATE OF CALIFORNIA SAFETY WARNING: Drinking
beverages with added sugar(s) contributes to obesity, diabetes, and
tooth decay.”

(c) The safety warning required by subdivision (a) shall be
prominently displayed and readily legible under ordinary
conditions, separate and apart from all other information, and shall
be on a contrasting background. The first five words of the safety
warning in subdivision (b), “STATE OF CALIFORNIA SAFETY
WARNING” shall appear in capital letters. The entire safety
warning shall appear in bold type.

111224.30.  

(a) Notwithstanding Section 111825, subdivision
(b) of Section 111855, or any other law, commencing July 1, 2016,
any violation of this article, or a regulation adopted pursuant to
this article, is punishable by a civil penalty of not less than fifty
dollars ($50), but no greater than five hundred dollars ($500). The
department may assess the civil penalty according to the procedures
set forth in Section 111855. A person shall not be found to violate
this article more than once during any one inspection visit.

(b) There is hereby created in the State Treasury the
Sugar-Sweetened Beverages Safety Warning Fund. The fund shall
consist of moneys collected for the violation of this article. The
department shall remit to the Treasurer any civil penalties collected
pursuant to subdivision (a) on a biannual basis, no later than March
15 and September 15 of each year. Notwithstanding any other law,
moneys in the fund, upon appropriation by the Legislature, shall
be allocated to the department for the purpose of enforcing this
article.

111224.35.  

Notwithstanding Section 111224.15 or 111224.20,
if, after appropriate investigation and consultation with the state
health officer, the department finds that available scientific
information would justify a change in the language of the safety
warnings set forth in Sections 111224.15 and 111224.20, the
department may adopt regulations to develop new language for
the safety warning and may require that the alternative language
be adopted in lieu of the language set forth in Sections 111224.15
and 111224.20.

111224.40.  

It is the intent of the Legislature that nothing in
this article shall be construed to preempt or prohibit the adoption
and implementation of local ordinances related to sugar-sweetened
beverages, except any local ordinance that is inconsistent with this
article. An ordinance is not deemed inconsistent with this article
if it affords greater protection than the requirements set forth in
this article.

SEC. 3.  

The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.