BILL NUMBER: SB 20	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 25, 2011

INTRODUCED BY   Senator Padilla

                        DECEMBER 6, 2010

   An act  to amend Section 114094 of the Health and Safety Code,
  relating to food facilities.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 20, as amended, Padilla. Food facilities: menu labeling.
   Existing law, the California Retail Food Code, requires, on and
after January 1, 2011, each food facility in the state that 
operates under common ownership or control with at least 19 other
food facilities with the same name in the state and that offers for
sale substantially the same menu items or that  meets  other
 specified criteria to disclose calorie content information per
standard menu item, as specified. The State Department of Public
Health administers and local enforcement agencies enforce this code.
Existing law provides that, on and after July 1, 2009, a food
facility that violates these provisions is guilty of an infraction.
   Existing law, the  federal   Federal 
Food, Drug, and Cosmetic Act, requires certain restaurants and
similar retail food establishments  that are part of a chain with
20 or more locations doing business under the same name and offering
for sale substantially the same menu items  to disclose
nutrient content information, as specified, and provides that certain
state and local nutrient content information requirements that are
not identical to the federal law are preempted.
   This bill would  declare the intent of the Legislature to
enact legislation that would conform state menu labeling requirements
to federal requirements   provide that the calorie
content disclosure requirements of the   California Retail
Food Code are instead applicable to certain food facilities that are
part of a chain with at least 20 locations doing business under the
same name and offering for sale substantially the same menu items
 . 
   By revising the definition of a crime and changing the duties of
local officials, this bill would impose a state mandated-local
program.  
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason. 

   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program:  no
  yes  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature hereby finds and declares all of the
following:
   (a) In 2008, the Legislature enacted Section 114094 of the Health
and Safety Code to provide consumers within California with better
access to nutritional information about prepared foods sold at food
facilities with at least 20 locations with the same name in the state
so that consumers can understand the nutritional value of available
foods.
   (b) On March 23, 2010, the federal Patient Protection and
Affordable Care Act was enacted to, among other things, provide
consumers in all states with access to nutritional information about
the prepared foods sold at restaurants or similar retail food
establishments that are part of a chain with 20 or more locations
doing business under the same name. 
  SEC. 2.    It is the intent of the Legislature to
enact legislation that would conform state menu labeling requirements
with federal menu labeling requirements. 
   SEC. 2.    Section 114094 of the   Health
and Safety Code   is amended to read: 
   114094.  (a) For purposes of this section, the following
definitions shall apply:
   (1) "Food facility" means a food facility  in the state
 that  operates under common ownership or control
with at least 19 other food facilities with   which is
part of a chain with at least 20 locations doing business under 
the same name  in the state   , regardless of
the type of ownership of the locations, and  that  offer
  offers  for sale substantially the same menu
items,  or operates as a franchised outlet of a parent
company with at least 19 other franchised outlets with the same name
in the state that offer for sale substantially the same menu items,
 except that a "food facility" does not include the
following:
   (A) Certified farmer's markets.
   (B) Commissaries.
   (C) Grocery stores, except for separately owned food facilities to
which this section otherwise applies that are located in the grocery
store. For purposes of this paragraph, "grocery store" means a store
primarily engaged in the retail sale of canned food, dry goods,
fresh fruits and vegetables, and fresh meats, fish, and poultry.
"Grocery store" includes convenience stores.
   (D) Licensed health care facilities.
   (E) Mobile support units.
   (F) Public and private school cafeterias.
   (G) Restricted food service facilities.
   (H) Retail stores in which a majority of sales are from a
pharmacy, as defined in Section 4037 of the Business and Professions
Code.
   (I) Vending machines.
   (2) "Calorie content information" means the total number of
calories per standard menu item, as that item is usually prepared and
offered for sale.
   (3) "Drive-through" means an area where a customer may provide an
order for and receive standard menu items while occupying a motor
vehicle.
   (4) "Menu board" means a posted list or pictorial display of food
or beverage items offered for sale by a food facility.
   (5) "Nutritional information" includes, but is not limited to, all
of the following, per standard menu item, as that item is usually
prepared and offered for sale:
   (A) Total number of calories.
   (B) Total number of grams of carbohydrates.
   (C) Total number of grams of saturated fat.
   (D) Total number of milligrams of sodium.
   (6) "Point of sale" means the location where a customer makes an
order.
   (7) "Standard menu item" means a food or beverage item offered for
sale by a food facility through a menu, menu board, or display tag
at least 180 days per calendar year, except that "standard menu item"
does not include any of the following:
   (A) A food item that is customized on a case-by-case basis in
response to an unsolicited customer request.
   (B) An alcoholic beverage, the labeling of which is not regulated
by the federal Food and Drug Administration.
   (C) A packaged food otherwise subject to the nutrition labeling
requirements of the federal Nutrition Labeling and Education Act of
1990.
   (D) A food item when served at a consumer self-service salad bar.
   (E) A food or beverage item when served at a consumer self-service
buffet.
   (8) "Reasonable basis" means any reasonable means recognized by
the federal Food and Drug Administration of determining nutritional
information, as well as calorie content information, for a standard
menu item, as usually prepared and offered for sale, including, but
not limited to, nutrient databases and laboratory analyses.
   (9) "Appetizer" means a food item that is generally served prior
to a food item that is generally regarded as the primary food item in
a meal. An "appetizer" includes a first course, starter, or small
plate.
   (10) "Dessert" means a food item that is generally served after a
food item that is generally regarded as the primary food item in a
meal. "Dessert" includes, but is not limited to, cakes, pastries,
pies, ice cream and food items that contain ice cream, confections,
and other sweets.
   (b) (1) Commencing July 1, 2009, to December 31, 2010, inclusive,
every food facility shall either disclose nutritional information as
required by paragraph (2), or comply with subdivision (c) during this
period of time.
   (2) (A) In order to comply with paragraph (1), a food facility
that does not provide sit-down service shall disclose the information
in a clear and conspicuous manner on a brochure that is made
available at the point of sale prior to or during the placement of an
order. A food facility that provides sit-down service shall provide
the nutritional information in a clear and conspicuous size and
typeface on at least one of the following:
   (i) A brochure available on the table.
   (ii) A menu next to each standard menu item.
   (iii) A menu, under an index section that is separate from the
listing of standard menu items.
   (iv) A menu insert.
   (v) A table tent on the table.
   (B) Notwithstanding subparagraph (A), a food facility that has a
drive-through area and uses a menu board to display or list standard
menu items at the point of sale shall, for purposes of the
drive-through area only, disclose the nutritional information in a
clear and conspicuous manner on a brochure that is available upon
request, and shall conspicuously display a notice at the point of
sale that reads: "NUTRITION INFORMATION IS AVAILABLE UPON REQUEST" or
other similar statement that indicates the disclosure of nutrition
information is available upon request.
   (c) (1) On and after January 1, 2011, every food facility that
provides a menu shall disclose calorie content information for a
standard menu item next to the item on the menu in a size and
typeface that is clear and conspicuous.
   (2) On and after January 1, 2011, every food facility that uses an
indoor menu board shall disclose calorie content information for a
standard menu item next to the item on the menu board in a size and
typeface that is clear and conspicuous.
   (3) On and after January 1, 2011, every food facility that uses a
display tag as an alternative to a menu or menu board to describe a
standard menu item that is displayed for sale in a display case
within the food facility shall disclose calorie content information
for that standard menu item on the display tag for that item in a
size and typeface that is clear and conspicuous.
   (4) On and after January 1, 2011, every food facility that has a
drive-through area and uses a menu board to display or list standard
menu items at the point of sale shall, for purposes of the
drive-through area only, disclose the nutritional information for
each standard menu item in a clear and conspicuous manner on a
brochure that is available upon request, and shall clearly and
conspicuously display a notice at the point of sale that reads:
"NUTRITION INFORMATION IS AVAILABLE UPON REQUEST" or other similar
statement that indicates the disclosure of nutrition information upon
request. If a food facility subject to this paragraph discloses
nutritional information in the manner described in subparagraph (B)
of paragraph (2) of subdivision (b), the food facility shall be
deemed to be in compliance with this paragraph.
   (d) For purposes of subdivision (c), the disclosure of calorie
content information on a menu or menu board next to a standard menu
item that is a combination of at least two standard menu items on the
menu or menu board, shall, based upon all possible combinations for
that standard menu item, include both the minimum amount of calories
for the calorie count information and the maximum amount of calories
for the calorie count information. If there is only one possible
total amount of calories, then this total shall be disclosed.
   (e) For purposes of subdivision (c), the disclosure of calorie
content information on a menu or menu board next to a standard menu
item that is not an appetizer or dessert, but is intended to serve
more than one individual, shall include both of the following:
   (1) The number of individuals intended to be served by the
standard menu item.
   (2) The calorie content information per individual serving. If the
standard menu item is a combination of at least two standard menu
items, this disclosure shall, based upon all possible combinations
for that standard menu item, include both the minimum amount of
calories for the calorie count information and the maximum amount of
calories. If there is only one possible total amount of calories,
then this total shall be disclosed.
   (f) The nutritional information and calorie content information
required by this section shall be determined on a reasonable basis. A
reasonable basis determination of nutritional information and
calorie content information shall be required only once per standard
menu item, provided that portion size is reasonably consistent and
the food facility follows a standardized recipe and trains to a
consistent method of preparation.
   (g) (1) Every brochure provided pursuant to this section shall
include the statement: "Recommended limits for a 2,000 calorie daily
diet are 20 grams of saturated fat and 2,300 milligrams of sodium."
   (2) Menus and menu boards may include a disclaimer that indicates
that there may be variations in nutritional content across servings,
based on variations in overall size and quantities of ingredients,
and based on special ordering.
   (h) This section shall not be construed to create or enhance any
claim, right of action, or civil liability that did not previously
exist under state law or limit any claim, right of action, or civil
liability that otherwise exists under state law. The only enforcement
mechanism of the section is the local enforcement agency.
   (i) This section shall not be construed to preclude any food
facility from voluntarily providing nutritional information in
addition to the requirements of this section.
   (j) To the extent consistent with federal law, this section, as
well as any other state law that regulates the disclosure of
nutritional information, is a matter of statewide concern and
occupies the whole field of regulation regarding the disclosure of
nutritional information by a food facility. No ordinance or
regulation of a local government shall regulate the dissemination of
nutritional information by a food facility. Any ordinance or
regulation that violates this prohibition is void and shall have no
force or effect.
   (k) Commencing July 1, 2009, a food facility that violates this
section is guilty of an infraction, punishable by a fine of not less
than fifty dollars ($50) or more than five hundred dollars ($500),
which may be assessed by a local enforcement agency. However, a food
facility may not be found to violate this section more than once
during an inspection visit. Notwithstanding Section 114395, a
violation of this section is not a misdemeanor.
   (l) If any provision of this section, or the application thereof,
is for any reason held invalid, ineffective, or unconstitutional by a
court of competent jurisdiction, the remainder of this section,
shall not be affected thereby, and to this end, the provisions of
this section are severable.
   SEC. 3.    No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.  
   However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.