BILL ANALYSIS �
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THIRD READING
Bill No: AB 1616
Author: Gatto (D), et al.
Amended: 8/21/12 in Senate
Vote: 21
SENATE HEALTH COMMITTEE : 8-0, 6/27/12
AYES: Hernandez, Harman, Alquist, Anderson, Blakeslee,
DeSaulnier, Rubio, Wolk
NO VOTE RECORDED: De Le�n
SENATE APPROPRIATIONS COMMITTEE : 7-0, 8/16/12
AYES: Kehoe, Walters, Alquist, Dutton, Lieu, Price,
Steinberg
ASSEMBLY FLOOR : 56-19, 5/29/12 - See last page for vote
SUBJECT : Food safety: cottage food operations
SOURCE : Author
DIGEST : This bill regulates the production in home
kitchens of food for sale, referred to as cottage food
operations.
ANALYSIS :
Existing law:
1. Establishes the Sherman Food, Drug and Cosmetic Law,
enforced by the Department of Public Health (DPH) to
CONTINUED
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regulate food, drugs and cosmetics in California.
2. Establishes the CRFC which repealed the California
Uniform Retail Food Facilities Law 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 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:
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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
cottage food operation (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;
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
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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/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.Authorizes an LEHD to seek recovery from a CFO for
reasonable costs incurred from inspecting a CFO for
compliance with these provisions.
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11.Requires DPH to post specified requirements, described
above, on its website. Requires DPH 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 (a) classify CFOs as permitted use of
residential property, as specified; (b) grant a
nondiscretionary permit to use a residence as a CFO, as
specified; or (c) 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.
Background
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
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(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 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
this bill, 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.
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:
1. 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.
2. 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,
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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.
3. 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 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: (a) this bill allows chocolate covered
non-perishable foods, whereas AFDO prohibits tempered or
molded chocolate or chocolate-type products; (b) this
bill allows mustards, which AFDO prohibits; (c) this
bill adds baked goods such as breads, whereas AFDO
allows most breads except for focaccia-style breads with
vegetables and/or cheeses; and (d) this bill lists
additional items that AFDO does not address, like honey
and sweet sorghum syrup, dried mole paste, fruit butters
and nut butters.
California Retail Food Code (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,
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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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
One-time costs of $150,000 to $300,000 (General Fund) for
DPH to adopt regulations regarding foods that may be
produced by cottage food operations.
Unknown costs to local environmental health departments
to regulate cottage food operations (local funds).
Because local environmental health departments have the
authority to levy fees, these costs are not reimbursable
by the state.
SUPPORT : (Verified 8/21/12)
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
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OPPOSITION : (Verified 8/21/12)
California Association of Environmental Health
Administrators
ARGUMENTS IN SUPPORT : The Community Alliance with Family
Farmers (CAFF) supports this bill 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.
ARGUMENTS IN OPPOSITION : The California Association of
Environmental Health Administrators (CAEHA) is opposed
unless two provisions 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
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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 this bill.
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
DPH authority to add or delete foods on the list as needed
in order to keep the list current and valid.
ASSEMBLY FLOOR : 56-19, 5/29/12
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Chesbro, Davis, Dickinson, Eng, Feuer, Fong,
Fuentes, Furutani, Galgiani, Gatto, Gordon, Hayashi,
Roger Hern�ndez, Hill, Huber, Hueso, Huffman, Jeffries,
Lara, Bonnie Lowenthal, Ma, Mendoza, Mitchell, Monning,
Nestande, Olsen, Pan, Perea, V. Manuel P�rez, Portantino,
Skinner, Smyth, Solorio, Swanson, Torres, Valadao,
Wieckowski, Williams, Yamada, John A. P�rez
NOES: Achadjian, Conway, Donnelly, Beth Gaines, Garrick,
Grove, Hagman, Halderman, Harkey, Jones, Knight, Logue,
Mansoor, Miller, Morrell, Nielsen, Norby, Silva, Wagner
NO VOTE RECORDED: Cedillo, Cook, Fletcher, Gorell, Hall
CTW:m 8/21/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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