BILL ANALYSIS Ó
SB 746
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Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON HEALTH
Rob Bonta, Chair
SB
746 (Wolk) - As Introduced February 27, 2015
SENATE VOTE: 34-0
SUBJECT: Food safety: grist mills.
SUMMARY: Exempts from the requirements to register as a food
processing facility and also exempts from the definition of a
food facility, and therefore provisions of the California Retail
Food Code (CRFC), a historic water-driven grist mill in order to
allow grain to be milled, packaged and sold at the mill without
having to meet the requirements of a food processing facility or
a retail food facility. Specifically, this bill:
1)Exempts from the requirement to register as a food processing
facility, beginning January 1, 2018, the milling, packaging,
and selling of grain produced and sold at a water-driven grist
mill on the National Register of Historic Places, provided:
a) Best management practices suitable for a historic
water-driven grist mill are followed for the processing and
handling of the product;
b) The flour is identified as being produced in a historic
mill using traditional methods; and
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c) The product meets applicable federal food adulteration
purity standards.
2)Exempts from the definition of food facility, beginning
January 1, 2018, for purposes of law requiring food facilities
to obtain a permit from California Department of Public Health
(DPH) or the local health agency having jurisdiction over the
food facility, a water-driven grist mill that is on the
National Register of Historic Places and that has onsite sales
of grain that is milled at the facility.
3)Makes various legislative findings and declarations related to
the recent moratorium on the closure of state parks and the
use of innovative tools to stabilize the Department of Parks
and Recreation (DPR) and broaden its financial base, and that
a more entrepreneurial and robust revenue-generation strategy
must be established for the state parks.
4)States the intent of the Legislature to encourage DPR and DPH
to consult with each other to develop and implement
additional, reasonable improvements designed to increase
public health security at the Bale Grist Mill State Historic
Park, without impairing or adversely affecting historical,
cultural, or natural resources.
EXISTING LAW:
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1)Prohibits any person from engaging in the manufacture,
packing, or holding of any processed food unless the person
has a valid registration as a food processing facility from
DPH.
2)Exempts certain activities that are authorized under specific
permits and licenses from the food processing facility
registration requirements.
3)Prohibits any food facility from being open for business
without a valid permit from DPH or the local health agency
having jurisdiction over the food facility.
4)Defines "food facility" as an operation that stores, prepares,
packages, serves, vends, or otherwise provides food for human
consumption at the retail level.
5)Establishes various requirements that food facilities must
meet, including requiring that the interior floor, sides, and
top of the food holding area to be constructed of a smooth,
washable, impervious material capable of withstanding frequent
cleaning.
6)Exempts from the definition of "food facility" certain
specified entities, including premises operated by a producer
that sells only whole produce grown by the producer, provided
the sales are conducted on premises controlled by the
producer.
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7)Defines, under the federal Food, Drug, and Cosmetic Act, food
purity standards and deems food adulterated, or not fit for
human consumption, if that food is prepared, packed, or held
under insanitary conditions.
FISCAL EFFECT: This bill is keyed non-fiscal.
COMMENTS:
1)PURPOSE OF THIS BILL. According to the author, in 2011, as
part of the Governor's efforts to cut state expenditures, the
Bale Grist Mill and 69 other state parks were selected for
closure. The Napa County Regional Park and Open Space
District, in partnership with the Napa Valley State Parks
Association, is working to keep the mill open to the public.
Selling flour produced at the mill is an important element in
generating the revenues needed to keep this National Historic
Landmark open to the public. Because the mill is not
registered as either a retail food facility or a food
processing facility, the grain sold at the mill must be
labeled as not fit for human consumption. The author states
that the grist mill is a very clean, neat and well maintained
facility, best management practices are used, and the flour
which is produced is safe and healthy.
2)Bale Grist Mill State Historic Park. The Bale Grist Mill
State Historic Park is located near St. Helena in Napa County.
The water-powered mill was built in 1846. The Bale Grist
Mill was registered as a California historical landmark on
October 9, 1939. In 1972, Bale's Grist Mill was entered on
the National Register of Historic Places. In 1974, it was
conveyed to the California State Park System for preservation
and eventual restoration as Bale Grist Mill State Historic
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Park. The mill currently offers flour produced at the mill in
exchange for a donation, but it must be labeled as not fit for
human consumption because the mill is not registered as either
a retail food facility or food processing facility.
AB 1589 (Huffman), Chapter 533, Statutes of 2012, required DPR
to develop a plan to increase revenues at state parks,
appropriated $10 million in Proposition 84 general obligation
bond funds for the installation of revenue collection
equipment and other improvements at state parks, and
authorized taxpayers to voluntarily contribute to the state
park system through the income tax system.
The intention of this bill is to allow the Bale Grist Mill
additional revenue in order to make the mill operationally
self-sufficient. The total operational expenses of the mill
for 2012 were $130,000. Revenues from operation of the Bale
Grist Mill (entrance fees, sales of merchandise, donations for
flour, and special events at the Bale Grist Mill) for 2012
were $100,634. The revenue currently generated from the sale
of milled grain is approximately $19,000 of the total revenue
each year. The sponsors of this bill suggest that more grain
would be sold if it could be sold without the notice that it
is not fit for human consumption.
This bill is nearly identical to SB 170 (Wolk) of 2014, which
would have taken effect on January 1, 2016. In vetoing that
measure, Governor Brown directed DPH and the DPR to continue
working with representatives from the mill on other potential
solutions to the ongoing problems. According to DPH,
representatives from DPH and DPR met several times with
representatives of the mill and the County to discuss possible
solutions. Despite everyone's best effort, these discussions
have identified no middle ground, either food is unsafe or the
historical integrity of the mill is lost.
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3)SUPPORT. The Napa County Board of Supervisors (Napa County)
states that the Bale Grist Mill is one of only two remaining
water-driven mills west of the Mississippi River. Napa County
states that the mill currently sells flour produced at the
mill, but it must be labeled as not fit for human consumption
because the mill is not registered as either a retail food
facility or a food processing facility. Napa County cannot
meet the standards for a retail food facility or a food
processing facility because the physical historic construction
of the mill makes it impossible to comply with current codes.
For example, wood floors are not allowed, the porous grinding
stone is not allowed, and contact between grain/flour and the
wood in the grain chutes and flour bins is not allowed. Napa
County supports this bill to allow the Bale Grist Mill to be
financially viable and not dependent on state subsidies.
4)OPPOSITION. DPH is opposed to this bill, stating that
"unfortunately, given the nature of the mill with wood
surfaces and dry ingredients used in the milling of flour,
there is no cleaning and sanitation process that will
eliminate the bacterial and viral pathogens left behind from
the rodent excreta and urine without increasing the
opportunity for other pathogens to grow and colonize the
area." DPH continues to oppose carving out a narrow exemption
in the Health and Safety Code for only one food processing
facility that cannot meet current food safety requirements.
In addition, despite significant work at both the state and
local level, DPH believes the bill would not achieve what the
sponsor intends - exemption from food processing requirements.
5)RELATED LEGISLATION.
a) AB 143 (Wood) expands an exemption in the CRFC allowing
wine tasting rooms that currently only serve crackers to
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also serve pretzels or prepackaged non-potentially
hazardous foods. AB 143 passed out of this committee on
April 21, 2015 with a vote of 16-0 and is currently pending
on the Senate floor (consent calendar).
b) AB 1076 (Mayes) exempts from the definition of a food
facility, a snack bar operated by a charitable nonprofit
organization and authorizes snack bars to undertake limited
food preparation, as defined. AB 1076 is pending in
Assembly Health Committee.
6)PREVIOUS LEGISLATION. SB 170 (Wolk) of 2014, was nearly
identical to this bill, and would have taken effect on January
1, 2016. Unlike SB 746, SB 170 was heard in the Assembly
Water, Parks, and Wildlife Committee. SB 170 was vetoed by
the Governor, who stated: "Exempting these products by January
1, 2016, is premature, as no best management practices yet
exist for historic water-driven grist mills. I will direct the
Department of Public Health and the Department of Parks and
Recreation to continue working with proponents on this and
other potential solutions to help raise needed revenues."
7)DOUBLE REFERRAL. A request to refer this bill to the Assembly
Appropriations Committee has been approved by the Assembly
Rules Committee; upon passage in this Committee, this bill
will be referred to the Assembly Appropriations Committee.
8)POLICY CONCERNS
a) Appropriate best management practices have not yet been
developed. This bill requires that the mill follow food
processing and handling best management practices suitable
for a historic water-driven grist mill, but these practices
have not yet been developed. This bill states legislative
intent, but does not require, that DPH and DPR develop
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those practices. The author has attempted to address the
Governor's veto message by allowing two years for
appropriate best management practices to be developed, but
it is unclear whether the parties involved will be able to
come agree on practices that protect both food safety and
the historical integrity of the mill.
b) Bats, cats, and rats. The mill's physical historic
construction means it cannot meet current-day codes for
retail food safety. State law requires that a food
facility structure be free of mice, bats, cats, and flies,
which both supporters and opponents of this bill agree is
not possible without destroying the historic integrity of
the mill. The Committee may wish to consider whether it is
inconsistent with the policies of this Committee to allow
an exemption from food safety standards for a facility
that, by definition, cannot possibly meet general food
safety protections, in particular exclusion of animals and
vermin.
c) Does this bill achieve its intended goal? The bill
requires the flour to meet federal food purity standards.
As California adopts all federal food safety regulations as
the State's regulations, it is unlikely the mill will be
able to meet the standard proposed by the bill and thus
would not be able to achieve exemption from state law as
desired. Even if the mill were completely exempt from
state regulation, California cannot waive the federal food
standards in order to allow the mill to sell the flour
directly to consumers or restaurants for use in food.
Although the grain at the mill is offered in exchange for a
donation, rather than being sold, it is entering into
commerce and cannot meet federal or state purity standards.
The author may wish to consider whether, even under the
provisions of this bill, the grain would still be in
violation of federal and state food purity and adulteration
standards.
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9)SUGGESTED AMENDMENT. Upon vetoing SB 170, the Governor
directed DPH and DPR to work with stakeholders to develop best
management practices suitable for this mill. This bill, as
drafted, only mentions that fact in legislative findings and
does not state in statute that the Bale Grist Mill would
follow the developed best management practices to protect food
safety. To address this, the Committee suggests the author
amend this bill as follows:
(11) Beginning January 1, 2018, the milling,
packaging, and selling of grain produced and sold at a
water-driven grist mill on the National Register of
Historic Places, provided best management practices
developed in conjunction with Department of Public
Health and the Department of Parks and Recreation
suitable for a historic water-driven grist mill are
followed for the processing and handling of the
product, the flour is identified as being produced in
a historic mill using traditional methods, and the
product meets applicable federal food adulteration
purity standards.
REGISTERED SUPPORT / OPPOSITION:
Support
Napa County Regional Park and Open Space District (sponsor)
Napa City Council
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Napa County Board of Supervisors
Opposition
Department of Public Health
Analysis Prepared by:Dharia McGrew / HEALTH / (916)
319-2097