BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 1616
AUTHOR: Gatto
AMENDED: May 3, 2012
HEARING DATE: June 27, 2012
CONSULTANT: Orr
SUBJECT : Food safety: cottage food operations.
SUMMARY : Regulates the production and sale of certain foods
prepared in a home kitchen. Includes a cottage food operation
(CFO), as defined, within the private home exemption of the
California Retail Food Code (CRFC). Permits food prepared by a
registered or permitted CFO to be offered for sale in a food
facility.
Existing law:
1.Establishes the Sherman Food, Drug and Cosmetic Law, enforced
by the California Department of Public Health (CDPH) to
regulate food, drugs and cosmetics in California.
2.Establishes the CRFC which repealed the California Uniform
Retail Food Facilities Law (CURFFL) and recast, expanded, and
revised its provisions into the CRFC, effective July 1, 2007.
Governs all aspects of retail food safety and sanitation in
California under the CRFC. Specifies that primary
responsibility for enforcement of the CRFC is with local
enforcement agencies, typically local environmental health
departments (LEHDs).
3.Requires that food be obtained from sources that comply with
all applicable laws. Prohibits food stored or prepared in a
private home from being used or offered for sale in a food
facility. Requires food in a hermetically sealed container be
obtained from a food processing plant, as specified.
4.Defines "potentially hazardous food" to mean any food capable
of supporting growth of infectious or toxigenic
micro-organisms when held at temperatures above 45 degrees
Fahrenheit.
5.Defines "food processing facility" to mean any facility
operating for the purpose of manufacturing, packing, or
holding processed food, with specified exceptions. Prohibits a
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person from manufacturing, packing, or holding any processed
food without a valid registration.
6.Defines "food facility" to mean an operation that stores,
prepares, packages, serves, vends, or otherwise provides food
for human consumption at the retail level. Includes permanent
and nonpermanent food facilities, such as vending machines,
mobile food facilities, and certified farmer's markets and
farm stands, as specified. Excludes from this definition
private homes, wine or beer tasting premises, and churches,
private clubs or other nonprofit associations that give or
sell food to its members and guests and not to the general
public at an event, as specified. Subjects food facilities to
routine inspections by LEHDs.
This bill:
1.Defines "cottage food operation" to mean an enterprise with no
more than $50,000 in gross annual sales that is operated by a
cottage food operator, as defined, within the registered or
permitted area of a private home, as defined, where cottage
foods are prepared or packaged for direct or indirect sale to
consumers. Permits a CFO to have no more than one employee,
excluding family members, as defined.
2.Establishes two categories of CFOs:
a. Defines "Class A" as limited to direct sales of cottage
food products only. Defines "direct sale" as when the
consumer purchases the cottage food product directly from
the CFO, as described; and
b. Defines "Class B" as a CFO that may engage in direct or
indirect sales of cottage food products. Defines "indirect
sale" as when a consumer purchases the cottage food product
made by a CFO from the third-party retailer, as described.
3.Prohibits a Class A CFO from operating without registering
with the LEHD. Registration includes a self-certification
checklist to verify the CFO conforms to applicable
requirements, including:
a. A prohibition on cottage food preparation, packaging or
handling concurrent with any other domestic activities not
pertaining to the CFO;
b. A prohibition on infants, small children or pets in the
home during cottage food preparation, packaging or
handling;
c. A requirement to use only normal, noncommercial kitchen
equipment and utensils;
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d. A requirement to wash, rinse and sanitize all food
contact surfaces, equipment and utensils used for the
preparation, packaging, or handling of cottage food
products; and
e. A requirement to keep all food preparation and food and
equipment storage areas free of rodents and insects.
4.Prohibits a Class B CFO from operating without a permit from
the LEHD. Requires a registration or permit to be issued by
the LEHD when an investigation determines that the CFO
conforms to the specified requirements described above.
Specifies that a registration or permit, once issued, is
nontransferable and only valid for the persons, location, type
of food sales and distribution activity specified by the
permit, as specified.
5.Requires registered and permitted CFOs to be considered
restricted food service facilities subject to specified
sanitary measures, as specified.
6.Requires a CFO to include a disclosure statement informing the
consumer that the product was prepared in a private home, with
the CFO's registration or permit number on its packaging.
7.Permits food prepared by a registered or permitted CFO to be
offered for sale in a food facility. Permits food in a
hermetically sealed container to be obtained from a registered
or permitted CFO.
8.Requires a person affiliated with a CFO involved in the
preparation and packaging of cottage food products to not work
in the home kitchen when sick with a contagious illness; to
wash his or her hands before any food preparation and food
packaging activity; and, to confine preparation, packaging,
handling, or storage of cottage food products to only within
the registered or permitted area.
9.Requires a person who prepares or packages cottage food
products to complete a food handler course, as described.
10.Authorize a LEHD to seek recovery from a CFO for reasonable
costs incurred from inspecting a CFO for compliance with these
provisions.
11.Requires CDPH to post specified requirements, described
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above, on its website. Requires CDPH to adopt and post a list
of not potentially hazardous foods approved for sale by a CFO,
as described.
12.Defines "cottage food products" as non-potentially hazardous
foods, as described, that are prepared for sale in the kitchen
of a CFO.
13.Defines "registered or permitted area" as the portion of the
private home used for the preparation, packaging, storage or
handling of cottage food products and related ingredients
and/or equipment.
14.Excludes a CFO that is registered or has a permit, as
specified, from definitions in existing law related to food
processing and from the prohibition on manufacturing, packing,
or holding any processed food without a valid registration.
15.Prohibits a city and/or county from prohibiting CFOs in any
residential dwellings. Requires a city and/or county to
either: 1) classify CFOs as permitted use of residential
property, as specified; 2) grant a nondiscretionary permit to
use a residence as a CFO, as specified; or 3) require a CFO to
apply for a permit to use a residence for its operation, as
specified. Requires a city and/or county to provide a list of
permits and fees required in connection to the permits.
16.Makes various legislative findings and declarations related
to the growing movement in California to support
community-based food production.
FISCAL EFFECT : The Assembly Appropriations Committee estimates:
1) Ongoing costs of up to $200,000 General Fund (GF) per year
for CDPH to conduct any multijurisdictional emergency
response foodborne outbreak investigations, assuming there
are approximately 45 such outbreaks per year.
2) One-time costs of $300,000 (GF), spread over two years, for
CDPH to develop regulations and maintain and publish a list
of food products that can be safely prepared and sold to
the public.
3) Unknown costs, likely several hundred thousand dollars per
year, for LEHDs to approve and certify CFOs throughout the
state. Those costs would be offset by licensing and
certification fees.
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PRIOR VOTES :
Assembly Health: 15- 0
Assembly Appropriations:12- 5
Assembly Floor: 56- 19
COMMENTS :
1.Author's statement. AB 1616 was introduced after an article
featuring a constituent's popular home bread-making business
appeared in the Los Angeles Times in May 2011. A short time
thereafter his business was shut down by the public health
official because under current California law, a person may
not use the kitchen in a private residence to produce any
foods to be sold or traded for public consumption. The
national movement to "homemade" foods and products - also
known as "cottage foods", "artisanal foods", "slow foods" and
products of "urban agriculture" - reflects a wish to increase
the availability of healthier and locally processed foods for
our communities. Such products typically include organic and
natural ingredients that are less artificially refined or
processed. Thirty-one states now have laws that permit the
in-home production and distribution of homemade foods (for
example, breads, tortillas, dry roasted nuts and legumes,
granola, churros, jams, jellies and other products). During
these difficult economic times, California should do
everything possible to allow individuals to provide for their
families and assist with our economic recovery, and home-based
food production can allow micro-entrepreneurs to prosper
during times of otherwise limited economic opportunity by
meeting the desires of local consumers.
2.Cottage foods. Cottage foods are classified as certain
non-potentially hazardous foods, such as bread, granola,
popcorn, and nuts, that do not require time and temperature
control for safety. Cottage food operations are, in many
cases, unlicensed or unregistered, and the limited oversight
of these operations may present a gap in our current food
safety and security system in this country, according to the
Association of Food and Drug Officials (AFDO). According to
the National Conference of State Legislatures, 31 states have
laws to regulate cottage and home-based food production and it
continues to be a subject of legislative interest. Most states
do not conduct regular, routine inspections for CFOs in the
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same manner as they would for commercial kitchens. Some
states also require the home kitchen to be inspected only if
the LEHD has particular reason to suspect any unsafe food is
associated with the kitchen. According to information from the
Sustainable Economies Law Center (SELC), a supporter of AB
1616, most cottage food laws only allow for the direct sale to
consumers (such as at farmer's markets) but some also allow
for the sale of homemade foods to grocery stores and
restaurants.
3.AFDO guidance. AFDO, an international, non-profit, food
industry-focused organization aimed at streamlining and
simplifying federal, state, and local regulations, issued
regulatory guidance in April 2012 to discuss best practices
for the oversight of cottage foods. According to AFDO, the
regulatory guidance document is a consensus effort to set
standards for CFOs that preserve public health while still
allowing for economic opportunity. Highlights of this guidance
include the following:
a. Definitions. AFDO provides definitions for "cottage
food products" and "potentially hazardous food," which are
fairly consistent with the definitions in this bill. A key
distinction is AFDO's definition of "cottage food
operation," which is defined in part as a person who
produces cottage food products only for sale directly to
the consumer. AFDO suggests prohibiting sales by internet,
mail or phone order, consignment or wholesale. This bill
goes beyond this definition by including indirect sales of
cottage food products to third-party retailers.
b. Permitting and inspections. AFDO suggests that all
cottage food operators be permitted annually by the
regulatory authority on forms developed by that authority.
AFDO suggests the regulatory authority be required to
examine the premises of the CFO to determine it to be in
compliance with requirements. AFDO guidance permits the
regulatory authority to inspect at any time, and whenever
there is reason to believe the cottage food operation is
in violation of these requirements or is operating in an
unsanitary manner. This bill does not describe inspection
requirements. Class A CFOs are merely required to
self-certify that they meet applicable requirements. Class
B CFOs are required to be permitted, but the bill is
silent on how inspections would occur for this class.
c. Non-potentially hazardous food items. AFDO provides a
list of food items they consider to be non-potentially
hazardous, and therefore acceptable for CFOs, as well as a
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list of food items AFDO considers unacceptable for CFOs.
This bill issues a list of items that is largely similar
to the AFDO list, but with a few notable exceptions: 1)
This bill allows chocolate covered non-perishable foods,
whereas AFDO prohibits tempered or molded chocolate or
chocolate-type products; 2) This bill allows mustards,
which AFDO prohibits; 3) This bill adds baked goods such
as breads, whereas AFDO allows most breads except for
focaccia-style breads with vegetables and/or cheeses; 4)
This bill lists additional items that AFDO does not
address, like honey and sweet sorghum syrup, dried mole
paste, fruit butters and nut butters.
4.CRFC. CRFC was established to create uniformity between
California's retail food safety laws and those of other
states, as well as to enhance food safety laws based on the
best available science. CRFC is modeled after the U. S. Food
and Drug Administration's (FDA) Food Code, a model that
assists food control jurisdictions at all levels of government
by providing them with a scientifically sound, technical and
legal basis for regulating the retail and food service segment
of the industry (restaurants and grocery stores and
institutions such as nursing homes). CRFC, among other things,
establishes uniform food safety and sanitation requirements
for local jurisdictions to follow and establishes the
authority of local environmental health jurisdictions to adopt
a food safety inspection program with state oversight. Local
jurisdictions are granted the authority to inspect food
facilities, immediately suspend a permit, conduct hearings,
take samples or other evidence, impound food or equipment, and
issue reports as necessary to protect the public's health. The
federal model Food Code, published by the FDA along with the
U.S. Public Health Service, states that "food prepared in a
private home may not be used or offered for human consumption
in a food establishment."
5.Related legislation. AB 2297 (Hayashi) would exclude
intermediate care facilities for the developmentally disabled
from regulation as food facilities under the California Retail
Food Code (CRFC). Clarifies that the Office of Statewide
Health Planning and Development has primary jurisdiction over
licensed skilled nursing facilities when enforcing structural
modification requirements in the CRFC. Set to be heard in
Senate Health Committee on June 27, 2012.
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AB 1277 (Hill) would eliminate licensing inspections by CDPH
for drug and medical device manufacturers, as specified.
Limits CDPH's authority to make investigations or inspections
of manufacturers to situations when CDPH is notified by the
FDA of a recall action, or when the FDA has requested
assistance for enforcement activities. Set to be heard in
Senate Health Committee on June 27, 2012.
6.Prior legislation.
SB 303 (Padilla) Chapter 233, Statutes of 2011, clarified that
existing law requiring a food handler to obtain a food handler
card only applies to food handlers employed at a food facility
that sells food for human consumption to the general public;
requires that after January 1, 2012, a food handler must
obtain a food handler card exclusively from a nationally
accredited training provider; and clarifies that snack bars,
prisons, county jails, and elderly nutrition programs are
exempt from the food handler certification requirements.
AB 1014 (Fletcher) Chapter 159, Statutes of 2011, exempts
premises set aside by a beer manufacturer, as defined, for
beer tasting, from the definition of a food facility, thereby,
exempting beer tasting premises from the provisions of the
CRFC.
SB 602 (Padilla) Chapter 309, Statutes of 2010, requires an
individual involved in the preparation, storage, or service of
food to obtain a food handler card within 30 days after his or
her hire date at a food facility, with specified exceptions,
as of June 1, 2011. Mandates at least one of the accredited
food safety certification examinations required under current
law to be offered online.
AB 2432 (John A. P�rez) Chapter 682, Statutes of 2010, exempts
a permanent food facility that has less than 300 square feet
of display area, and that sells only prepackaged food that is
not potentially hazardous food, from CRFC requirements, except
for specified provisions.
SB 241 (Runner) Chapter 571, Statutes of 2009, establishes
"single operating site mobile food facility" as a new category
of mobile food facilities regulated under the CRFC, imposes
various requirements on these facilities, and revises
standards applicable to mobile food facilities and satellite
food facilities.
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SB 144 (Runner), Chapter 23, Statutes of 2006, repealed the
CURFFL, and effective July 1, 2007, enacted its provisions
into the CRFC to govern all aspects of retail food sanitation
in California.
AB 1548 (Cardoza) Chapter 915, Statutes of 1999 revised and
recast the provisions of the Sherman Food, Drug, and Cosmetic
Law. Provides for the inspection and reinspection of food
processing facilities, as defined, and would revise the fees
charged for new and renewal registrations including the
imposition of different fees in specified counties. Vests the
authority to conduct certain inspections in what is now CDPH.
7.Support. The Community Alliance with Family Farmers (CAFF)
supports AB 1616 because they claim the availability of
commercial kitchens across the state is uneven, and
particularly in rural areas where CAFF's members live. CAFF
states that with the recent rise of the local food movement
throughout the state, many people in urban areas also want to
be able to process and sell food from their homes. The East
Bay Agricultural Alliance (EBUAA) sees this bill as providing
groundbreaking opportunities to facilitate a local food
economy and access to healthy food in the community and
statewide. EBUAA claims the costs associated with accessing
commercial kitchens are currently too high for people, which
creates unnecessary barriers to micro-enterprises seeking to
process and sell the least hazardous types of food on a
neighborhood or regional basis.
The Los Angeles Bread Bakers supports this bill because it
will decriminalize artisanal food production. They believe
hunger, food insecurity and nutrition-related chronic disease
can be eliminated by removing barriers to small-scale food
production, which will promote a healthy, sustainable
community-based food system that benefits food producers and
consumers alike. Whole Foods Market supports this bill and
claims they make special efforts to find and sell unique
products that are grown and processed locally. Whole Foods
supports legislative efforts to stimulate local food
production to meet the demand for artisan, specialty and
locally produced foods that cottage food operators, empowered
by this bill, are sure to provide the state.
8.Opposition. The California Association of Environmental
Health Administrators (CAEHA) is opposed unless two provisions
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are amended. CAEHA asserts that this bill is a major departure
from the CRFC in two ways: it would allow food prepared in
private homes to be sold to the public, and it would
pre-approve a set of "low-risk" foods to be prepared and sold
in this manner. CAEHA states that the limitations they have
been considering for these indirect or wholesale sales have
not allayed the concerns of local regulators. The inspection
of private homes by local or state regulators is fraught with
enforcement challenges and the geographic or sales volume
limitations considered for these indirect sales are likely to
be impractical to establish and impose. CAEHA says that while
it may be possible to develop criteria to limit these indirect
sales, these have not yet been identified. Local regulators
understand that legitimizing the emerging cottage food
industry in California may have some economic and limited
nutritional benefits. CAEHA asserts that they would remove
their opposition if this bill was amended to allow only direct
sales to consumers.
CAEHA also expresses concern over the list of pre-approved
low-risk not potentially hazardous foods in AB 1616. CAEHA
instead suggests using the list proposed by the National
Association of Food and Drug Officials, which has been
reviewed and approved by food safety experts across the
nation. CAEHA also suggests amending the bill to give CDPH
authority to add or delete foods on the list as needed in
order to keep the list current and valid.
9.Policy Comments.
a. Indirect sales. As mentioned above, very few states
authorize indirect sales of cottage foods to consumers,
and AFDO guidance expressly prohibits wholesale sales of
cottage food products. The author and stakeholders may
wish to move forward with the direct sales provisions in
the bill, but allow more time to thoroughly evaluate the
best way to accomplish indirect sales in order to ensure
the safety of the product, ensure adequate implementation
measures are in place, and still allow these enterprising
CFOs to be successful. Alternative suggestions would be to
allow indirect sales upon the promulgation of regulations
by CDPH, or in the absence of guidance from the state,
allow LEHDs to authorize and regulate indirect sales
within their jurisdictions at their discretion.
b. Inconsistent lists of non-potentially hazardous foods.
As mentioned above, this bill's list differs from the AFDO
list of approved foods. The Committee staff suggests
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amending the bill to mimic the AFDO list of
non-potentially hazardous foods.
10.Author's Amendments. The author would like to take amendments
in Committee that do the following:
a. Allow LEHDs to recover reasonable inspection costs
from a Class A CFO if the CFO is found to be in violation
of these provisions,
b. Allow Class B CFOs to sell cottage food products
within the county where the CFO is permitted,
c. Authorize a county to allow cottage food products
produced by a Class B CFO in a different county to be able
to sell those products within their own county, and
d. Delete vegetable empanadas and vegetable tamales from
the list of non-potentially hazardous foods.
SUPPORT AND OPPOSITION :
Support: American Federation of State, County and Municipal
Employees, AFL-CIO
Bay Localize
Berkeley Food Policy Council
California Food and Justice Coalition
California State Grange
Central Coast Alliance United for a Sustainable Economy
Community Alliance with Family Farmers
East Bay Urban Agriculture Alliance
forageSF
La Cocina
Los Angeles Bread Bakers
Oakland Food Policy Council
Proyecto Jardin
San Diego Hunger Coalition
San Francisco Urban Agriculture Alliance
Sustainable Economies Law Center
Valley Ford Young Farmers Association
Whole Foods Northern California
One individual
Oppose: California Association of Environmental Health
Administrators
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