BILL ANALYSIS �
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 20
S
AUTHOR: Padilla
B
AMENDED: April 25, 2011
HEARING DATE: May 4, 2011
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CONSULTANT:
0
Orr
SUBJECT
Food facilities: menu labeling
SUMMARY
For purposes of menu labeling requirements, revises the
definition of "food facility" to mean a food facility that
is part of a chain with at least 20 locations doing
business under the same name and that offers for sale
substantially the same menu items, regardless of the type
of ownership.
CHANGES TO EXISTING LAW
Existing federal law:
Establishes the United States Food and Drug Administration
(FDA) to regulate food, cosmetics, medicines, and medicine
products; and ensures that such products are labeled
appropriately.
Establishes the Nutrition Labeling and Education Act, which
requires all packaged foods sold outside of restaurants to
include nutritional content information on the packaging.
Requires restaurants to provide nutritional content
information on food items for which a nutrient or
health-related claim is made by the restaurant.
Continued---
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Establishes the Patient Protection and Affordable Care Act
(PPACA) (Public Law 111-148) as amended by the Health Care
and Education Reconciliation Act (H.R. 4872).
Under PPACA, requires restaurants or similar retail
establishments with 20 or more locations doing business
under the same name and offering for sale substantially the
same menu items, to disclose specified nutritional
information of the standard menu items, with exceptions.
Additionally requires operators of 20 or more vending
machines to provide signs disclosing the number of calories
for food items in the machines when the Nutrition Facts
Panel cannot be viewed by the purchaser.
Existing state law:
Establishes the California Retail Food Code (CRFC), which
imposes various health and safety requirements on
restaurants and makes violations of these requirements
subject to criminal penalties. CRFC establishes the
authority of local environmental health jurisdictions to
adopt a food safety inspection program with oversight by
the California Department of Public Health (CDPH).
Requires every food facility in this state that operates
under common ownership or control, with at least 19 other
food facilities with the same name, that sell substantially
the same menu items, or operates as a franchised outlet of
a parent company with at least 19 other franchises, with
the same name, that sell substantially the same menu items,
to disclose to consumers specified nutritional information
for all standard menu items by January 1, 2011.
For the purpose of menu labeling requirements, defines
"food facility" as a food facility in California that
operates under common ownership or control with at least 19
other food facilities with the same name that sell
substantially the same menu items, or operates as a
franchised outlet of a parent company with at least 19
other franchises with the same name that sell substantially
the same menu items.
Excludes certified farmers' markets, commissaries, grocery
stores, convenience stores, licensed health care
facilities, mobile support units, public and private school
cafeterias, restricted food service facilities, retail
stores in which a majority of sales are from a pharmacy,
and vending machines from the definition of food facility.
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This bill:
Revises the definition of "food facility" to one that is
part of a chain with at least 20 locations doing business
under the same name, regardless of the type of ownership,
that offers for sale substantially the same menu items.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
The author is introducing SB 20 to conform California's
menu labeling standards to federal menu labeling standards.
The author states that a previous bill that initiated menu
labeling requirement in California, SB 1420 (Padilla,
Chapter 600, Statutes of 2008), was part of a comprehensive
effort to combat the growing obesity epidemic facing the
state and advanced a nationwide conversation regarding the
benefits of menu labeling. SB 1420 required restaurant
chains with 20 or more locations to provide nutritional
information on their menus and menu boards. In addition, SB
1420 required restaurant chains with 20 or more locations
in California to make nutritional information, including
sodium, saturated fat, caloric and carbohydrate content
available to customers under specified circumstances. SB
1420 was signed into law in 2008.
Menu labeling provisions were subsequently included in
PPACA, but with minor differences between PPACA and
California's law. The intent of SB 20 is to conform
California's law to federal law on the types of chains
subject to menu labeling requirements.
Obesity epidemic
Obesity has reached epidemic proportions in the United
States, affecting one-third of all adults, 27 percent of
children, and 21 percent of adolescents. Former Surgeon
General David Satcher has stated that, "Overweight and
obesity may soon cause as much preventable disease and
death as cigarette smoking." Data published by the Centers
for Disease Control and Prevention (CDC) indicate that 68
percent of the adult U.S. population is overweight or
obese, including 34 percent who are considered obese.
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For adults, being overweight or obese increases the risk
for a number of chronic diseases, including coronary heart
disease, type 2 diabetes, stroke, hypertension, arthritis,
and
certain types of cancer. Body mass index (BMI) over 35 is
associated with excess mortality, primarily from
cardiovascular disease, diabetes, and certain types of
cancer.
CDC data indicate that about 32 percent of children and
adolescents, ages 2 to 19, are
overweight or obese. In some school districts in
California, 50 percent of the students are overweight.
Overweight youth face increased risks of many serious
health problems that traditionally have not commonly
occurred during childhood, including type 2 diabetes, high
blood pressure, arthritis, and osteoporosis. More than 80
percent of obese adolescents remain obese as adults with
even more severe consequences, including higher risks of
heart disease and cancer.
Eating out
Studies have shown that eating out more frequently is
associated with obesity, higher body fat or higher BMI, and
that eating more fast food meals is linked to eating more
calories, more saturated fat, fewer fruits and vegetables,
and less milk. According to a report issued by the Center
for Science in the Public Interest (CSPI) in 2003,
Americans spent about 46 percent of their food dollars at
restaurants, compared with 26 percent in 1970. According
to the USDA, calories consumed at restaurants (or
away-from-home foods) as a part of the diet had doubled
from 18 percent to 34 percent by 1995.
A report from the UC Berkeley Center for Weight and Health
(CWH) entitled "Potential Impact of Menu Labeling of Fast
Foods in California" claims that the largest single source
of food consumed away from home is fast food. CWH estimates
there are around 15,000 fast food establishments in
California-- nearly 4 times as many as there are grocery
stores.
California Obesity Prevention Plan
In September 2006, the Department of Health Services
released the California Obesity Prevention Plan to serve as
a guide for each sector of society to take part in creating
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the shift to healthy eating and active living. The plan
identifies recommendations for action for all sectors to
make sustainable changes in physical activity and food
environments. The plan organizes strategic actions around
four goals, including supporting local assistance grants
and implementing multi-sectoral policy strategies to create
healthy eating and active living community environments.
Within the framework of this larger goal, the plan
recommends posting calorie information per serving on all
menus and menu boards at restaurants and encourage healthy
food options on all menus.
Food labeling
The federal Nutrition Labeling and Education Act of 1990
(NLEA) amended the Food, Drug, and Cosmetic Act (FD&C Act)
in part, by specifying with certain exceptions, that a food
is considered to be misbranded unless its label or labeling
bears nutrition information. The NLEA amendments to the
FD&C Act included exemptions for nutrition labeling for
food that is:
Served in restaurants or other establishments in
which food is served for immediate human consumption;
Sold for sale or use in such establishments;
Primarily processed and prepared in a retail
establishment, ready for human consumption; or
Offered for sale to consumers but not for immediate
human consumption in such establishment and which is
not offered for sale outside such establishment.
Under the NLEA, restaurants and other establishments that
make either a nutrient content claim or health claim about
the food served must also provide certain nutrition
information upon request.
Food labeling is currently required for most prepared
foods, such as breads, cereals, canned and frozen foods,
snacks, desserts, drinks, etc. Nutrition labeling for raw
produce (fruits and vegetables) and fish is voluntary.
Americans now consume about one-third of their total
calories from foods prepared outside the home. According to
CWH, research shows that consumers routinely underestimate
the amount of calories in food. However, since nutrition
labeling of packaged foods was mandated by the FDA in
the1990s, nearly one half (48 percent) of American adults
report that reading the nutrition information on food
labels has helped them change their purchasing habits.
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In recent years, there has been growing support among
public health experts for providing calorie and other
nutrition information on restaurant menus in order to help
consumers make more informed food choices. There is also
evidence of consumer
preference for calorie information on menus. CWH cites that
more than two-thirds of respondents to a 2003 national
telephone survey of adults supported the idea of listing
calorie information on restaurant menus.
Food labeling provisions in PPACA
Section 4205 of the PPACA amends the Federal FD&C Act to
impose new nutritional labeling requirements for foods that
are a standard menu item offered for sale in a restaurant
or similar retail food establishment that is part of a
chain with 20 or more locations doing business under the
same name and offering for sale substantially the same menu
items. Specifically, the following information must be
provided for standard menu items that are sold in chain
retail food establishments:
The number of calories contained in each standard
menu item as usually prepared and offered for sale on
a menu or menu board. The calorie declaration must be
adjacent to the name of the standard menu item, so as
to be clearly associated with the item);
A succinct statement concerning suggested daily
caloric intake, posted prominently on the menu or menu
board, designed to enable the public to understand, in
the context of a total daily diet, the significance of
the calorie information provided on menus and menu
boards;
Additional nutrition information for standard menu
items in a written form available on the premises,
which must be made available to consumers upon
request;
A prominent, clear, and conspicuous statement on
the menu or menu board regarding the availability of
the written nutrition information; and
The number of calories per item or per serving on a
sign adjacent to self-service food and food on
display. This food includes food sold at salad bars,
buffet lines, cafeteria lines or similar self-service
facilities, and self-service beverages and food on
display that is visible to consumers.
Under PPACA, the Secretary of Health and Human Services
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(HHS) may require the disclosure of additional information.
The requirements also apply to drive-throughs,
self-service, and foods on display. Restaurants and similar
retail food establishments not otherwise covered by the law
may elect to become subject to the federal requirements by
registering every other year with the FDA. Regulations to
implement these provisions were to be proposed by March 23,
2011.
The FDA recently submitted proposed regulations, which will
define the scope of the establishments covered by this law,
define menus and menu boards, determine the foods covered
by this law, establish requirements for daily caloric
intake disclosure statements, and establish standards for
determining and disclosing the nutrient content for
standard menu items.
Some establishments are already posting nutrition
information, but the nutrition labeling requirements won't
be finalized until FDA completes the rulemaking process.
Although many of these provisions became requirements at
the time the law was signed on March 23, 2010, FDA has
previously announced that they intend to exercise their
enforcement discretion until their final rule is published
and in effect. FDA is hoping to issue the final rules by
the end of this year and is proposing that the final rules
become effective six months from the date of publication
for covered restaurants and similar retail food
establishments and one year from the date of publication
for covered vending machines.
California menu labeling law
SB 1420 (Padilla, Chapter 600, Statutes of 2008) requires
every food facility in the state that operates under common
ownership or control or operates as a franchised outlet of
a parent company, with at least 19 other food facilities or
franchises with the same name that sell substantially the
same menu items, to disclose to consumers specified
nutritional information for all standard menu items. SB
1420 excludes specified facilities, such as grocery stores,
convenience stores, public and private school cafeterias,
and vending machines from these requirements. It also
provides definitions for calorie content information,
drive-through, menu board, and others, for the purpose of
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the bill, and describes nutritional information to include
total number of calories, grams of carbohydrates, grams of
saturated fat; and milligrams of sodium.
SB 1420 was passed into law prior to PPACA, and was
implemented January 1, 2011. One major difference between
PPACA and existing state menu labeling laws is that PPACA
requires operators of 20 or more vending machines to
provide signs disclosing the nutritional for food items in
the machines when the Nutrition Facts Panel cannot be
viewed by the purchaser, whereas state law excludes vending
machines from labeling requirements. Since the FDA has not
finished issuing their menu labeling regulations yet, it is
unknown how closely California laws will match the final
federal regulations. At minimum, state laws on menu
labeling will be superseded by federal law. However,
establishments not covered under the new federal law or its
implementing regulations remain subject to existing state
and local laws.
Related bills
SB 471 (Rubio) requires the state Department of Social
Services (DSS) to expand the list of items that are not
allowed to be purchased with CalFresh benefits, as
prescribed and to the extent permitted by federal law.
Requires DSS to prohibit the use of CalFresh benefits at
restaurants, including fast-food restaurants. Modifies the
list of allowable food items purchasable under CalFresh to
prohibit purchasing sweetened beverages containing more
than 10 calories per cup, with specified exceptions.
Pending hearing in the Senate Human Services Committee.
AB 234 (Weickowski) declares the intent of the Legislature
to enact legislation to ensure that all Californians have
access to fresh produce and healthy food options. AB 234
has not been referred to a committee.
AB 1100 (R. Hernandez) declares the intent of the
Legislature to enact legislation that would improve the
health of children in California by setting healthier
standards for children's meals that are accompanied by toys
and other incentive items. AB 1100 has not been referred
to a committee.
Prior legislation
SB 1420 (Padilla) Chapter 600, Statutes of 2008, requires
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by January 1, 2011, every food facility in the state that
operates under common ownership or control, with at least
19 other food facilities with the same name, that sell
substantially the same menu items, or operates as a
franchised outlet of a parent company with at least 19
other franchises with the same name, that sell
substantially the same menu items, to disclose to consumers
specified nutritional information for all standard menu
items.
AB 2572 (Parra) of 2008 would have required chain
restaurants with more than 20 locations in California to
disclose prescribed nutrition information for standard food
items by several methods within the facility. The bill
would have allowed food facilities to provide calorie
information only under specified circumstances. The bill
would provide for enforcement and penalties after January
1, 2010. Held in Senate Appropriations Committee on
suspense file.
SB 120 (Padilla) of 2007 was identical to SB 1420. This
bill was vetoed by the Governor.
SB 180 (Migden) of 2007 would have required a food facility
to make nutritional information available to the consumer
upon request. These provisions were amended out of the
bill.
SB 679 (Ortiz) of 2003 would have required restaurants to
make nutritional information immediately available to
customers, upon request, in a take-away form, and post a
sign stating that the information is available. SB 679
failed passage in the Assembly Health Committee.
COMMENTS
1.Conformity to PPACA. Current state statutes provide
exceptions to the definition of food facilities to which
labeling requirements apply. For instance, state law
expressly excludes vending machines from the definition
of food facilities, whereas PPACA includes vending
machines owned by operators with 20 or more machines.
Since the FDA has not finished issuing their regulations
yet, there is a possibility that it may not exclude or
include the same entities as the state, or may not define
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foods the same way the state has already defined them in
statute. As federal regulations become final, there may
be a need for future revisions to state law.
POSITIONS
Support: California Restaurant Association
Oppose: None received.
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