BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 550|
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THIRD READING
Bill No: SB 550
Author: Florez (D), et al
Amended: 5/20/09
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEV. COMM. : 8-2, 5/11/09
AYES: Negrete McLeod, Aanestad, Corbett, Correa, Florez,
Oropeza, Romero, Yee
NOES: Wyland, Walters
SUBJECT : Public health: food product recall technology
SOURCE : Author
DIGEST : This bill requires a grocery store that uses a
point-of-sale system to ensure that when a recalled product
is scanned, the point-of-sale system will notify the
employee and customer that the product being purchased is
subject to a recall.
ANALYSIS :
Existing law:
1. Requires a meat and poultry supplier, distributor, and
processor that sells any meat or poultry product which
meets the criteria for a Class I or Class II recall,
according to the United States Department of Agriculture
(USDA) guidelines, to immediately do the following:
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A. Notify the Department of Public Health (DPH), and
provide DPH an electronic list of customers who have
or will receive the product, including a firm name,
address, contact person's name, telephone number, fax
and e-mail address, as well as all pertinent
identifying codes and shipping information for each
customer including package codes, product codes, pack
dates, and lot numbers.
B. Notify each of its customers that received or may
receive products of the recall in a standardized
format and to document this notification, as
specified, maintain documentation of the notice, and
provide it to DPH upon request.
2. Requires every retail grocery store or grocery
department which uses an automatic checkout system to
have a clearly readable price indicated on 85 percent of
the total number of packaged consumer commodities
offered for sale.
3. Establishes the criteria and methodology, as specified,
by which the county sealer is to measure and verify the
accuracy of a point-of-sale system used by retail
establishments as a means for determining the price of
an item being purchased by a consumer, and further
authorizes the county to:
A. Take enforcement action for any item that is not
accurately scanned.
B. Charge a point-of-sale inspection fee, not to
exceed the actual cost of inspecting or testing the
system.
4. Defines "point-of-sale" systems as a computer or any
electronic system used by a retail establishment, such
as, but not limited to Universal Product Code (UPC)
scanners, price lookup codes, or an electronic price
lookup system as a means for determining the price of
the item being purchased by a consumer.
This bill:
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1. Requires a grocery store or grocery department that uses
a point-of-sale system and that is informed that product
it offers for sale is subject to a recall that applies
to all products with the same UPC shall ensure that the
point-of-sale notifies the employee and the customer
that the product is subject to recall when the product
is scanned through the point-of-sale.
2. Defines the following terms:
A. "Grocery Department" as a food facility within a
general retail merchandise store that is engaged
primarily in the retail sale of packaged food,
instead of food prepared for immediate consumption on
or off the premises.
B. "Grocery store" as a food facility that is engaged
primarily in the retail sale of packaged food,
instead of food prepared for immediate consumption on
or off the premises.
C. "Point-of-sale system" as any computer or
electronic system used by a retail establishment such
as, but not limited to, UPC scanners, price lookup
codes, or an electronic price lookup system as a
means for determining the price of the item being
purchased by a consumer.
Background
Recent Salmonella and E. coli outbreaks and recalls . The
recent Salmonella outbreak in peanut products is the latest
example of how contaminated foods can end up on store
shelves, threatening consumer safety. The largest recall
in United States history is linked to nearly 700 illnesses
and nine deaths across 44 states. The products produced by
Peanut Corporation of America (southwest Georgia) were
distributed across the United States and were directly
linked to the outbreak. Over 2,100 products have been
voluntarily recalled by more than 200 companies, and the
list continues to grow. In light of these facts, the
author contends there must be measures in place to ensure
that recalled food is not sold to unsuspecting customers.
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Even more troubling is that contaminated products may have
been fed to children at their schools. It has been
reported that contaminated peanut products have been
distributed to at least 162 public and private schools.
There is no question that this is not an isolated incident.
Outbreaks of food-borne illness continues to plague the
nation and California, year-after-year.
According to the Center for Disease Control, this outbreak
began in September 2008. A recall was not issued until
January 2009, listing several hundred recalled products.
It seems to demonstrate that we are playing "catch-up" with
a flawed food recall system.
In the last two years alone, there have been food-borne
illness outbreaks in spinach, lettuce, and tomatoes, and
2008 saw the largest beef recall in United States history.
California has been the source of a number of food-borne
illness outbreaks. Most recently, a California pistachio
processor has been identified as the source of a nationwide
recall of Salmonella-contaminated pistachios. First
identified on March 26 of this year by a Kraft Foods
food-borne illness test, the Food and Drug Administration
(FDA) was able to trace back the contamination to a
California pistachio producer, Setton Farms of Terra Bella,
which resulted in a nationwide recall of Setton pistachios
and pistachio products.
Earlier, California was identified as the source of a
nationwide outbreak of E. coli from spinach production.
The spinach outbreak sickened 204 people across 26 states
and led to the deaths of three people.
In March of this year, DPH announced a recall of brown
organic eggs because the eggs may be tainted with
Salmonella. The recalled eggs came from a producer in
Ripon, north of Modesto, and were distributed to Costco,
Safeway and Pak 'n Save stores in northern and central
California and western Nevada. No known illnesses have
been reported in connection with these eggs.
Federal authority to order food recalls . Food recalls are
voluntary and federal agencies responsible for food safety
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generally have no authority to compel companies to carry
out recalls. In recent years, the FDA has fielded
increasing numbers of questions regarding recalls of unsafe
imports, including jalape?o peppers, pet food, the blood
thinner heparin, and toothpaste. Additionally, several
domestic food products, from peanut butter contaminated
with Salmonella to spinach linked to E. coli to canned meat
products such as chili sauce spoiled by Clostridium
botulinum (botulism), have been voluntarily recalled by
businesses in recent years. Recalls may decrease consumer
confidence in the recalling company, food imports, or food
safety agencies such as the FDA when products later subject
to a recall may have sickened or killed people or pets.
The FDA only has the authority to order recalls in three
types of products: infant formula, medical devices, and
human tissue products. However, the agency may request
that a company recall other products, such as food, drugs,
and cosmetics.
Federal emphasis on food safety . In January 2004,
President Bush identified the nation's food system as
vulnerable to intentional acts of terrorism (Homeland
Security Presidential Directive/HSPD-9 Defense of United
States Agriculture and Food, January 30, 2004). According
to the United States Government Accountability Office's
(GAO) analysis of recalls in its October 2004 report on
"Food Safety: USDA and FDA Need to Better Ensure Prompt
and Complete Recalls of Potentially Unsafe Food", only 38
percent and 36 percent of recalled food was ultimately
recovered in recalls overseen by the USDA and FDA,
respectively. According to the GAO report, "the USDA and
FDA do not know how promptly and completely the recalling
companies and their distributors and other companies are
carrying out recalls, and neither agency is using its data
systems to effectively track and manage its recall
programs."
President Obama calls for tougher food safety regulation .
In March of this year, President Obama announced steps to
toughen food safety regulation, blaming outdated laws and
regulations, inadequate food inspections and lack of
resources at the FDA, stating "This is a hazard to public
health ? It is unacceptable." Furthermore, the President
announced the creation of a Food Safety Working Group,
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chaired by the Secretaries of Health and Human Services and
USDA which will include cabinet members and senior
officials from other federal agencies responsible for food
safety. The Working Group will give advice on legislation
and ways to improve a regulator's ability to prevent and
trace contaminated food. Currently a number of federal
agencies have a hand in food-safety regulation. The USDA
regulates meat, poultry and eggs, and the FDA regulates
most other non-meat items, such as fruits, vegetables and
packaged foods.
The National Advisory Committee on Microbiological Criteria
for Foods (NACMCF) . The NACMCF was established on March
18, 1988, in response to recommendations of the National
Academy of Sciences for an interagency approach to
microbiological criteria for foods. NACMCF provides
impartial, scientific advice to federal food safety
agencies for use in the development of an integrated
national food safety system approach from farm to final
consumption to assure the safety of domestic, imported, and
exported foods. NACMCF subcommittees have developed
microbiological criteria for specific foods such as raw
shellfish, cooked ready-to-eat shrimp, and crabmeat.
NACMCF reports provide current information and scientific
advice to participating federal food safety agencies and
serve as a foundation for regulations and programs aimed at
reducing food-borne disease and enhancing public health.
State authority to order food recalls . Currently there is
no specific authority for any state agency to order the
recall of food items in California. While SB 173 (Florez)
proposes to establish that authority, there is no current
mandate or authority to order the recall of a food item.
Under the current system, recalls of tainted foods are
voluntary and are ordered by the manufacturer or producer
of the food products. DPH currently has the authority to
embargo produce from being sold into the food supply chain.
However, that embargo authority stops the movement of the
produce, it does not recall the produce.
Prior Legislation
AB 1860 (Huffman), Chapter 569, Statutes of 2008,
established the Product Recall Safety and Protection Act,
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which among other things, requires a commercial dealer,
manufacturer, importer, distributor, or wholesaler that has
placed a product subject to a recall or warning into the
stream of commerce to do the following within 24 hours of
receiving notice of the recall or warning: (1) contact all
of its customers, other than end consumers, to whom it
sold, leased, sublet, or transferred the product, and (2)
place a link on its website, if any, to recall or warning
information that contains the specific recall notice or
warning. Requires a retailer who receives notice of a
recall or warning regarding a product that was sold during
the previous 18 months to take specified steps, including,
within three days, to remove the product from the shelves
of its stores or program its registers to ensure the item
cannot be sold and prominently post the recall notice or
warning for at least 60 days.
SB 200 (Florez), 2007-08 Session, would have authorized the
State Public Health Officer to adopt recall, quarantine,
and sanitary regulations necessary to prevent, or eliminate
conditions where produce or food processed from produce may
carry an illness, infection, pathogen, contagion, toxin or
condition that could kill or seriously affect the health of
humans. Would have required all leafy green vegetable
growers to be licensed by DPH. Would have established an
inspection program for leafy green vegetables. The bill
failed passage in the Assembly Agriculture Committee.
SB 202 (Florez), 2007-08 Session, would have established a
system to trace back to the field for all California leafy
green production. The bill failed passage in Assembly
Agriculture Committee.
AB 1907 (Ruskin), Chapter 434, Statutes of 2008, extended
authority of county sealers of weights and measures to levy
civil penalties for violations, extended the sunset on the
authority for counties to charge an annual device
registration fee, updated and revised fee schedule levels,
and established, until January 1, 2014, the authority for
counties to inspect the pricing accuracy of retail
point-of-sale systems.
SB 611 (Speier), Chapter 592, Statutes of 2006, established
the requirement for a meat or poultry supplier,
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distributor, broker or processor to immediately notify DPH
when meat or poultry products they sell are subject to a
Class I or Class II recall by the USDA.
AB 2285 (Assembly Business and Professions Committee),
Chapter 566, Statutes of 2006, made changes to the list of
items required to be displayed for consumers by automatic
checkout systems, and recast the term "automatic checkout"
to refer to the term "point-of-sale" and modified the
definition for "point-of-sale system."
AB 889 (Ruskin), Chapter 529, Statutes of 2005, established
the authority for counties to inspect the pricing accuracy
of retail point-of-sale systems.
SB 1585 (Speier), 2003-04 Session, would have required beef
and poultry suppliers, distributors, and processors to
notify DPH when meat or poultry they sell in California is
subject to a voluntary USDA recall. The bill was vetoed by
the Governor.
AB 2732 (Washington), 2002, Chapter 818, Statutes of 2002,
required automatic checkout systems to display the price
read by the computer. Required a business that uses an
automatic checkout system to ensure that the price of the
goods or service registered by the computer is
conspicuously displayed to the consumer, along with any
price reductions, taxes, surcharges and the total amount of
the transaction, and allowed for enforcement by local
governments.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/19/09)
California Alliance for Retired Americans
Consumers Union
ARGUMENTS IN SUPPORT : According to the author, the
latest major recall involving peanut butter tainted with
Salmonella, which impacted items from snacks, to dog food
to diet products, demonstrates the challenges a widespread
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outbreak presents in identifying which products are or are
not impacted. The author states that there is no
fail-proof way to ensure all recalled products which have
already been shelved are identified and pulled, other than
to have those items trigger an alert when scanned at
check-out.
The author contends once an item has made it out of the
plant, off the truck and onto the shelves and is recalled,
it is unreasonable to think an individual stocker can go
through every shelf and identify every item that could pose
a threat. The author further states: "In fact, I have had
staffers from my office easily purchase items subject to
recall at local grocery stores. I believe grocers have the
tools at their disposal to give consumers the final line of
defense they need and expect. Currently, a retail scanning
system can easily track price changes. It is not
impossible to use technology to avoid a public health
problem. Grocery stores such Kroger's and Food 4 Less
currently implement a food recall procedure where a
customer is alerted at the check-out register."
The author states: "There is a lack of confidence that
recalled products are actually recalled. It is for these
reasons that I have introduced SB 550."
JJA:mw 5/19/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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