BILL ANALYSIS �
AB 688
Page 1
ASSEMBLY THIRD READING
AB 688 (Pan)
As Introduced February 17, 2011
Majority vote
HEALTH 12-5 APPROPRIATIONS 12-5
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|Ayes:|Monning, Ammiano, Atkins, |Ayes:|Fuentes, Blumenfield, |
| |Bonilla, Eng, Gordon, | |Bradford, Charles |
| |Hayashi, | |Calderon, Campos, Davis, |
| |Roger Hern�ndez, Bonnie | |Gatto, Hall, Hill, Lara, |
| |Lowenthal, Pan, V. Manuel | |Mitchell, Solorio |
| |P�rez, Williams | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Logue, Mansoor, Nestande, |Nays:|Harkey, Donnelly, |
| |Silva, Smyth | |Nielsen, Norby, Wagner |
| | | | |
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SUMMARY : Prohibits a retailer from selling, or permitting to be
sold, infant formula, baby food, and over-the-counter (OTC)
drugs, as defined, after the "use by" or expiration date
provided on the product's packaging. Specifically, this bill :
1)Prohibits a retailer from selling or permitting to be sold
after the "use by" date infant formula or baby food, as
defined, that is required to have this date on its packaging
pursuant to federal regulations.
2)Prohibits a retailer from selling or permitting to be sold
after the expiration date an OTC drug, as defined.
3)Prohibits the provisions of this bill from being construed to
preclude any other action relating to expiration and "use by"
dates authorized by law.
EXISTING LAW :
1)Establishes the Sherman Food, Drug, and Cosmetic Law,
administered by the Department of Public Health (DPH), to
regulate the contents, packaging, labeling, and advertising of
food, drugs, and cosmetics in California.
2)Prohibits, under the Sherman Food, Drug, and Cosmetic Law, a
AB 688
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dealer from being prosecuted for a violation of any food,
drug, device, or cosmetic contained in an original, unbroken,
and undamaged package that bears the original labeling if all
of the following conditions are met:
a) The dealer has used reasonable care in the storage and
handling of the item;
b) The dealer has received the item in first-class
merchantable stock, as specified; and,
c) The dealer can produce a guarantee that the item is not
adulterated, misbranded, or falsely advertised, as
specified.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, minor, absorbable costs to the DPH to respond to
complaints related to the sale of expired food items and OTC
drugs.
COMMENTS : The author states that this bill is needed to address
a discrepancy between current law that does not prohibit the
sale of infant formula, baby food, and OTC medications beyond
the "use by" or expiration dates indicated on their packaging,
and federal law that requires these dates to be disclosed on
their labels. The sponsor, Consumer Federation of California
(CFC), notes that expired products may be dangerous to consume
and potentially fatal, and digesting them deprives the consumer
of the intended benefit of the product. CFC asserts that the
state's weak law allowing for the sale of expired infant formula
and nonprescription drugs has resulted in far too many expired
products being sold to pregnant women, seniors, and other
vulnerable consumers. CFC states that this bill will ensure
product safety and effectiveness by halting expired baby food
and OTC drugs from even reaching the shelves of California's
stores.
According to information provided by the author, this bill
arises from a March 2008 undercover shopping operation in which
state investigators with the Attorney General's (AG) office
found 48 different types of expired products on the shelves of
26 CVS Pharmacies in Los Angeles, Orange, and San Diego
counties. Some of the expired products, which included baby
formula, toddler food, and OTC medications, were between two and
11 months old. In June 2008, the AG's office and CVS reached a
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settlement agreement. As part of the settlement, CVS agreed to:
stop the sale of expired products in its stores in California;
implement a first-of-its-kind coupon program to entitle
consumers who find an expired item on store shelves to a coupon
that can be used toward any future purchase for any product at a
CVS store in California; require employees to check at least
twice a month that expiration dates have not passed on infant
formula, baby food, eggs, dairy products, and OTC drugs; perform
random audits in its California stores twice a year to make
certain that expired products are not being sold; require each
store to submit
bi-monthly reports to its corporate headquarters regarding
incidents involving expired products; and, designate a toll-free
number for employees and customers to report expired products.
The California Retailers Association, the California Grocers
Association, and CVS object to this bill, asserting that it will
not provide any additional level of consumer protection for
these products, given that mechanisms to police the sale of
expired baby food, infant formula, and OTC drugs already exist
through a host of federal, state, and local food safety
inspection regulations. Opponents believe this bill is
unnecessary and will result in additional enforcement action and
lawsuits against retailers and grocers at a time when they are
just beginning to rebound from the economic downturn. They also
remain concerned that the definition of "baby food" in this bill
is legally ambiguous and the "permit to be sold" language in
this bill would subject them to an enforcement action or lawsuit
without having sold a single expired product.
Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097
FN: 0000476