BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1616|
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THIRD READING
Bill No: AB 1616
Author: Gatto (D), et al.
Amended: 8/24/12 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.
Senate Floor Amendments of 8/24/12 include provisions
deemed necessary by the Administration to ensure proper
implementation of the bill. (See analysis section for
details of the 8/24/12 amendment)
ANALYSIS : The Sherman Law makes it unlawful to
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manufacture, sell, deliver, hold, or offer for sale any
food that is misbranded. Food is misbranded if its
labeling does not conform to specified federal labeling
requirements regarding nutrition, nutrient content or
health claims, and food allergens. Violation of this law
is a misdemeanor.
The existing California Retail Food Code (CRFC) provides
for the regulation of health and sanitation standards for
retail food facilities, as defined, by the Department of
Public Health (DPH). Under existing law, local health
agencies are primarily responsible for enforcing the CRFC.
That law exempts private homes from the definition of a
food facility, and prohibits food stored or prepared in a
private home from being used or offered for sale in a food
facility. That law also requires food that is offered for
human consumption to be honestly presented, as specified.
A violation of these provisions is a misdemeanor.
This bill includes a cottage food operation, as defined,
that is registered or has a permit within the private home
exemption of the CRFC. This bill also excludes a cottage
food operation from specified food processing establishment
and Sherman Law requirements. This bill requires a cottage
food operation to meet specified requirements relating to
training, sanitation, preparation, labeling, and
permissible types of sales and would subject a cottage food
operation to inspections under specified circumstances.
This bill requires a food facility that serves a cottage
food product without packaging or labeling to identify it
as homemade. This bill establishes various zoning and
permit requirements relating to cottage food operations.
Double-jointed with AB 2297 (Hayashi).
Specifically the August 24, 2012 amendments do the
following:
1. Create a Food Safety Fund in the state Treasury for
monies collected by the DPH pursuant to the provisions
of this bill.
2. Phase in gross annual sales limitations on cottage food
operators, beginning with a $35,000 sales maximum in
2013, a $40,000 maximum in 2014, and a $50,000 maximum
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beginning in 2015 and in each subsequent year.
3. Clarify allowable locations for the direct and indirect
sales of cottage food products.
4. Clarify that a third party retailer involved in indirect
sales must hold a valid permit from the enforcement
agency.
5. Clarify the definition of "registered or permitted area"
to include the kitchen of the private home and attached
rooms within the home that are used exclusively for
storage.
6. Amend the definition of "Permit" in the CRFC to include
a cottage food operation. Specify that "registration" is
synonymous with "permit."
7. Require kitchen equipment to be clean and maintained in
a good state of repair.
8. Remove the requirement that a home inspection, conducted
by a representative of a local enforcement agency based
on a consumer complaint, be conducted during regular
business hours. Remove the ability of the local
enforcement agency representative to pursue a search
warrant through an appropriate court upon denial of
access to the registered area of the home to be
inspected.
9. Remove the requirement that cottage food operations be
subject to specified sections of the CRFC pertaining to:
A. posting signage regarding employee handwashing,
B. warewashing machine specifications,
C. design and construction of utensils and equipment,
D. mechanical exhaust ventilation,
E. lockers for employees,
F flooring material specifications,
G. specifications for janitorial sinks, or
H. construction, alteration, or remodeling.
10.Require that employees of cottage food operations be
subject to handwashing requirements and personal
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cleanliness requirements, as described, and require
employees to wear gloves when contacting food and
food-contact surfaces, and other requirements, as
described.
11.Require a person who prepares or packages cottage food
products to complete a food handler course instructed by
DPH within three months of becoming registered. Specify
that the course not exceed four hours in length.
Require CDPH to work with local enforcement agencies to
ensure proper notification to cottage food operators.
12.Specify that cottage food products are prohibited from
being potentially hazardous food that requires time or
temperature control to limit pathogenic micro-organism
growth or toxin formation.
13.Make changes to the list of nonpotentially hazardous
foods DPH must adopt by adding biscuits, trail mixes,
and deleting rice cakes and rice noodles. Authorize the
State Public Health Officer to add or delete food
products to or from the list, as specified. Require DPH
to give notice of changes to this list on its website
and excludes the approved food products list from
administrative rulemaking requirements.
14.Require the State Public Health Officer to provide
technical assistance and develop, maintain, and deliver
commodity-specific training related t the safe
processing and packaging of cottage food products to
local enforcement agencies. Authorize local enforcement
agencies to collect a surcharge fee not to exceed
reasonable costs DPH incurs through the administration
of this training, to be deposited into the Food Safety
Fund.
15.Allow an authorized enforcement officer to enter,
inspect, issue citations to, and secure any samples,
photographs or other evidence from a cottage food
operation during hours of operation and other reasonable
times. Allow local enforcement officers to suspend or
revoke a cottage food operators permit for specified
violations, or immediately close an operation if an
imminent health hazard.
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16.Recast provisions prohibiting a city or county from
prohibiting cottage food operations from the Health and
Safety Code to the Government Code.
17.Make various technical and conforming changes.
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
(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
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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,
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.
CRFC . CRFC was established to create uniformity between
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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."
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 8/27/12)
American Federation of State, County and Municipal
Employees, AFL-CIO
Bay Localize
Berkeley Food Policy Council
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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
Terry Lamphier, County Supervisor, District III, County of
Nevada
Valley Ford Young Farmers Association
Whole Foods Northern California
OPPOSITION : (Verified 8/27/12)
Alameda County Board of Supervisors
California Association of Environmental Health
Administrators
California Retail Food Safety Coalition
Health Officers Association of California
Jackie's Jams
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 Urban Agriculture 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.
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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
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.
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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:mk 8/28/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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