BILL ANALYSIS
SB 190
Page 1
Date of Hearing: July 7, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
SB 190 (Wright) - As Amended: July 1, 2009
SENATE VOTE : 36-1
SUBJECT : Misbranded food: pomegranate juice.
SUMMARY : Directs the Department of Public Health (DPH) to
adopt regulations establishing definitions and standards of
identity for 100 percent pomegranate juice (PJ) in consultation
with interested parties by July 1, 2011. Specifically, this
bill :
1)Requires DPH, in consultation with interested parties, to
adopt regulations establishing definitions and standards of
identity for 100% PJ, consistent with ensuring the public
health by July 1, 2011.
2)Clarifies that the regulations in 1) above must apply
regardless of the origin or source of the pomegranates.
3)Requires moneys deposited on or after January 1, 2010, into
the Food Safety Fund, to be made available, upon appropriation
by the Legislature, to fund the development and adoption of
the regulations required by this bill.
EXISTING FEDERAL LAW :
1)Establishes the federal Food, Drug, and Cosmetic Act (FDCA),
enforced by the federal Food and Drug Administration (FDA), to
regulate the safety of food, drugs, and cosmetics.
2)Requires, pursuant to regulations, juices directly expressed
from a fruit or vegetable, i.e. not concentrated or
reconstituted, to be considered as 100% juice and declared
100% juice.
3)Prescribes, in regulations pursuant to the FDCA, national
uniform standards for beverages purporting to be 100% PJ,
including that such beverages may be comprised of any of the
following:
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a) Juice from one or more varieties of pomegranate fruit;
b) Solely from juice directly expressed from one or more
varieties of pomegranate fruit;
c) PJ concentrate and water, provided that the use of the
concentrate be disclosed in the name of the product and its
ingredient statement; and,
d) 100% PJ and non-juice ingredients that do not result in
a diminution of the juice soluble solids, provided that
"100% PJ" declarations be accompanied by a phrase
disclosing the non-juice ingredient, i.e. "100% PJ with
added sweetener" or "100% PJ with added preservatives."
4)Prohibits, pursuant to the FDCA, any State, or political
subdivision of a State, from establishing requirements for the
labeling of food of the types regulated under the FDCA,
including PJ, that are not identical to the regulations
promulgated by the FDCA.
EXISTING STATE LAW :
1)Establishes the Sherman Food, Drug, and Cosmetic Law to
regulate the contents, packaging, labeling, and advertising of
food, drugs, and cosmetics.
2)Specifies, with certain exceptions, that any food fabricated
from two or more ingredients is misbranded unless it bears a
label clearly stating the common or usual name of each
ingredient and, if the food purports to be a beverage
containing vegetable or fruit juice, a statement with
appropriate prominence on the information panel indicating the
total percentage of fruit or vegetable juice contained in the
food.
3)Makes it a misdemeanor, punishable as prescribed, to misbrand
any food.
4)Declares that all food labeling regulations adopted pursuant
to the FDCA are the food labeling regulations of this state.
5)Authorizes DPH, by regulation, to establish definitions and
standards of identity, quality, and fill of container for any
food, when, in its judgment, such action will promote honesty
and fair dealing in the interest of consumers.
FISCAL EFFECT : According to the Senate Appropriations
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Committee, to implement this bill, DPH would need a staff person
to promulgate regulations for about two years at an estimated
cost of $90,000 in fiscal years 2009-10 and 2010-11.
COMMENTS :
1)PURPOSE OF THIS BILL . The author contends that this bill is
intended to address issues of adulteration of PJ from foreign
sources. According to the author, PJ from foreign suppliers
in Iran and other Middle Eastern countries is purchased for
well below the established market price for pure PJ
concentrate and then used in juice products that are falsely
labeled with claims of "100% PJ with no sugar added" to induce
consumers to purchase the product in hopes of receiving
substantial health benefits. The author asserts that, given
the inherently high cost of producing PJ, many suppliers
resort to adulteration, an illegal practice of tainting PJ
with filler ingredients such as sugar, high fructose corn
syrup, low-cost juices, colorants, and flavor enhancers. The
author notes that California is the only commercial growing
region of pomegranates in the United States and adulterated PJ
damages California growers by driving down the price they get
for their commodity. Lastly, the sponsor of this bill, the
Partnership for Unadulterated, Real and Ethical Pomegranate
Juice (PURE PJ), a non-profit group comprised of juice
processors and 15 California pomegranate growers, adds that
this bill will ensure that all retail PJ is 100% pure and
unadulterated so consumers can enjoy the health value of this
product and California growers and juice processors can enjoy
a fair and level playing field.
2)HEALTH BENEFITS OF PJ . According to various studies provided
by the author's office, scientists have determined that 100%
PJ has high levels of unique polyphenols that are largely
responsible for its health benefits. Polyphenols are
antioxidants that are also found in red wine, green tea and
blueberry juice. A February 2009 article in the Journal of
Agricultural and Food and Chemistry found that the pomegranate
fruit has become an international high-value crop for the
production of commercial PJ and noted that perceived consumer
value of PJ is due in large part to its potential health
benefits based on a significant body of medical research
conducted with authentic pomegranate juice. Additionally, a
2004 article from the Journal of Biomedicine and Biotechnology
cited epidemiological studies linking antioxidants in PJ to a
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reduction in blood pressure and heart disease in a population
of patients who consumed it for three years. More recently, a
2009 study produced for the American Urological Association
suggested that, based on a population of patients who drank
eight ounces of PJ daily, PJ may slow the progression of
post-treatment prostate cancer recurrence.
3)FDA REGULATION . The FDA allows three types of claims on food
labels: a health claim, a structure or function claim, and a
nutrient claim. The FDA recognizes 17 specific health claims,
each linking a food or dietary ingredient to a disease or
health-related condition. Twelve were authorized through a
process in which the agency evaluates the evidence for a
food's reputed health effects. The other five were
incorporated as part of the FDA Modernization Act of 1997,
which allows for health claims based on an authoritative
statement of a scientific body of the federal government or
the National Academy of Sciences. In addition, the FDA sets
standards for labeling for any beverage that purports to
contain fruit or vegetable juice, including, but not limited
to advertising, labeling, and direct or indirect
representation to any fruit or vegetable. These standards
include mandatory labeling of which juice it contains and the
percentage of juice it contains.
4)FEDERAL STANDARDS OF IDENTITY . The FDCA requires regulations
to be promulgated that fix and establish for any food, under
its common or usual name so far as practicable, a reasonable
definition and standard of identity; a reasonable standard of
quality; and, reasonable standards of fill-of-container,
whenever such action will promote honesty and fair dealing in
the interest of consumers. Standards of identity define a
given food product, its name, and the ingredients that must be
used, or may be used, in the manufacture of the food. A food
which is represented or purports to be a food for which a
standard of identity has been promulgated must comply with the
specifications of the standard in every respect. A key
component of the standard of identity established for PJ
relates to its Brix level, which is an approximate measure of
the amount of sugars in a given liquid. FDCA regulations
require 100% PJ to have a minimum Brix level of 16.
5)RECENT LITIGATION . In July 2008, the U.S. District Court in
the Central District of California issued a ruling affecting a
lawsuit that POM Wonderful, LLC. (POM), a member of the
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sponsor of this bill, filed against Purely Juice, Inc.
According to court documents provided by the sponsor, POM
alleged that the defendant labeled its juice as 100% pure when
it had, in fact, been using juice imported from Iran that had
cane sugar and corn sweetener as major ingredients. The juice
in question was sold from January 7, 2007, to August 30, 2007.
The defendant argued that it had received certificates of
authenticity for the juice and had not experienced any
problems with it. POM contended that consumers purchase PJ
for the advertised health benefits and the defendant was using
misleading claims to take away market share. The court agreed
with testing results from seven different laboratories that
concluded that the defendant's juice could not have been pure
PJ since it contained foreign sugars, colorants, and filler
juices. Subsequently, the court ruled that the defendant sold
a product that contained false or misleading representation of
fact concerning the nature, characteristics and qualities of
its product and ordered Purely Juice to pay $1.5 million in
damages.
6)SUPPORT . Supporters, including Roll International, owner of
POM and a member of PURE PJ, the sponsor of this bill, and
many California pomegranate farms and farmers, state that this
bill will lead to the establishment of a standard of identity
for PJ, similar to the existing standard that California has
for olive oil, and require the labeling of PJ as "100% PJ" to
mean exactly that. Individual pomegranate growers and PJ
producers argue that this bill will protect the interests of
consumers who wish to buy authentic PJ and provide an even
playing field for the 250 farmers in the state who grow
commercial pomegranates on 35,000 acres. The American
Federation of State, County and Municipal Employees, AFL-CIO
(AFSCME) writes in support of a prior version of this bill,
stating that the misrepresentation of the percentage level of
actual PJ in a product not only hurts this California
industry, but also serves as false advertising. Supporters
add that this bill will for the first time establish a
standard for what constitutes 100% PJ so California growers
will be protected from competing with adulterated imported
products and California consumers will be assured that they
are getting what they pay for.
7)OPPOSITION . DPH opposes this bill because it is unnecessary.
DPH writes that existing law already states, in part, that
food fabricated from two or more ingredients is misbranded
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unless it bears a label clearly stating that the common or
usual name of each ingredient and, if the food claims to be a
beverage containing vegetable or fruit juice, it must include
a prominent statement on the information panel disclosing the
total percentage of fruit or vegetable juice contained in the
food. Furthermore, DPH adds that any person who violates
these provisions, or violates any regulation adopted pursuant
to these provisions, shall, if convicted, be subject to fines
and/or imprisonment. The Grocery Manufacturers Association
(GMA) points out that the FDA has already established criteria
for 100% PJ in its percent juice labeling regulations under
the FDCA. Additionally, the Juice Products Association notes
that these same FDA rules deem juices directly expressed from
fruit or vegetables to be 100% juice and implicitly allow for
beverages of less than 100% juice by requiring a statement of
percentage juice on these items. The California League of
Food Processors objects to the use of the Food Safety Fund,
which is dedicated to industry fee-based programs, as the
source of funding for the regulations required by this bill,
and argues that if the PJ industry wants to create definitions
and standards of identity for PJ, the PJ industry should pay
for the regulations.
8)POLICY COMMENT . Pursuant to the national uniformity standards
specified in the FDCA, nothing more or less can be required
under state law to define 100% PJ than what is already
required under federal law. Consequently, the author may wish
to address the potential for this bill to be subject to court
challenges based on federal preemption.
REGISTERED SUPPORT / OPPOSITION :
Support
Partnership for Unadulterated, Real and Ethical Pomegranate
Juice (sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO (prior version)
Da Neibru Farming Co.
Homewood Mountain Partners, LLC
JAY, LLC
Jedessa Partners, LP
Pilibos Family Trust
Pilibos Sisters Inc.
POM Wonderful, LLC
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R.A. Sano Farms, Inc.
Roll International
Simonian Farming Company
Opposition
American Fruits & Flavors
Apple & Eve, LLC
California League of Food Processors
California Nevada Soft Drink Association (prior version)
Clement Pappas & Co., Inc.
Cliffstar Corporation
Department of Public Health
Fallon Trading Co., Inc.
Grocery Manufacturers Association
Juice Products Association
Natural Products Association West
Smucker Natural Foods, Inc.
Steinhauser, Inc.
Stiebs Pomegranate Products
Sun Opta Global Organic Ingredients
Analysis Prepared by : Cassie Rafanan / HEALTH / (916)
319-2097