BILL ANALYSIS �
SB 20
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Date of Hearing: July 5, 2011
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
SB 20 (Padilla) - As Amended: June 29, 2011
SENATE VOTE : 34-2
SUBJECT : Food facilities: menu labeling.
SUMMARY : Repeals current law governing menu labeling
requirements for food facilities and, instead, conforms state
law to federal law. Specifically, this bill :
1)Deletes existing law governing menu labeling requirements for
food facilities.
2)Requires every food facility subject to federal law or subject
to state law as it read on July 1, 2011, to comply with the
requirements of federal law and all subsequent regulations.
3)Makes a violation of this bill an infraction punishable by a
fine in an amount that varies based on the nature of the
violation.
4)Prohibits a food facility from being found to have committed a
violation under this bill more than once during an inspection
visit.
EXISTING FEDERAL LAW :
1)Establishes the federal Food and Drug Administration (FDA) to
regulate food, cosmetics, medicines, and medicine products;
and ensure that such products are labeled appropriately.
2)Establishes the Nutrition Labeling and Education Act (NLEA),
which requires all packaged foods sold outside of restaurants
to include nutritional content information on the packaging.
3)Requires restaurants to provide nutritional content
information on food items for which a nutrient or
health-related claim is made by the restaurant.
4)Establishes the Patient Protection and Affordable Care Act
(PPACA) (Public Law 111-148) to, among other things, require
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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. Also 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 :
1)Establishes the California Retail Food Code (CRFC) to govern
all aspects of retail food safety and sanitation in California
and makes local environmental health departments primarily
responsible for enforcing CRFC through local food safety
inspection programs.
2)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.
3)Defines food facility, for the purpose of menu labeling
requirements, 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.
4)Excludes from the definition of food facility 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.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rules 28.8, negligible states
costs.
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COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill
seeks to conform California's menu labeling standards to
federal menu labeling requirements that were included in
PPACA. The author states that a previous bill that initiated
menu labeling in California, SB 1420 (Padilla) Chapter 600,
Statutes of 2008, was part of a comprehensive strategy to
combat the growing obesity epidemic facing the state and
advance a nationwide conversation about the benefits of menu
labeling. SB 1420 requires restaurant chains with 20 or more
locations to disclose nutritional information, including
sodium, saturated fat, caloric, and carbohydrate content, on
their menus and menu boards and make it available to customers
under specified circumstances.
The author contends that the menu labeling provisions included
in PPACA and subsequent proposed regulations for
implementation will likely create a need for conformity
between PPACA and California's law. This bill seeks to
address conformity relative to the types of chains subject to
menu labeling requirements.
2)EATING OUT . Studies have shown that eating out more
frequently is associated with obesity, higher body fat, or
higher body mass index, 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,
Americans spent roughly 46% of their food dollars at
restaurants in 2003, compared with 26% in 1970. According to
the FDA, the average American now eats more than four meals a
week that are prepared away from home; these foods are often
higher in fats and calories, and served in larger portions,
than foods made at home.
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 that
there are 15,000 fast food establishments in California -
nearly four times as many as there are grocery stores.
3)FOOD LABELING . Under the NLEA, a food is considered to be
misbranded unless its label or labeling bears nutrition
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information. The NLEA exempts nutrition labeling requirements
for food under specified circumstances, including that it is
served in restaurants or other establishments in which it is
served for immediate human consumption, or it is offered for
sale to consumers but not for immediate human consumption in
such establishments and is not offered for sale outside such
establishments. The NLEA requires restaurants and other
establishments that make either a nutrient content or health
claim about the food served to 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, and drinks. Nutrition labeling for raw produce
(fruits and vegetables) and fish is voluntary. 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 the 1990s, nearly
48% of American adults report that reading the nutrition
information on food labels has helped them change their
purchasing habits.
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. As evidence of consumer
preference for calorie information on menus, CWH points to a
2003 national telephone survey that found over two-thirds of
respondents supported the idea of listing calorie information
on restaurant menus.
4)FOOD LABELING PROVISIONS OF PPACA . Section 4205 of the PPACA
imposes 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 is required for
standard menu items sold in chain retail food establishments:
a) 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;
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b) A succinct statement regarding 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;
c) Additional nutrition information for standard menu items
in a written form available on the premises and made
available to consumers upon request;
d) A prominent, clear, and conspicuous statement on the
menu or menu board regarding the availability of the
written nutrition information; and,
e) The number of calories per item or per serving on a sign
adjacent to self-service food and food on display. These
items include 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 is
permitted to require the disclosure of additional information.
These requirements also apply to drive-through and
self-service establishments. Entities that are not covered by
the law such as restaurant chains with less than 20 locations
or movie theaters and bowling alleys, whose primary purpose is
not to sell food, may elect to "opt in" to the federal
requirements by registering with the FDA every other year.
The FDA recently issued 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.
The public comment period for interested stakeholders to
respond to the proposed regulations closes on July 5, 2011.
Some establishments are already posting nutrition information,
but the nutrition labeling requirements will not be finalized
until the FDA completes the rulemaking process. While many of
these provisions became requirements at the time that PPACA
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was signed on March 23, 2010, the FDA has previously announced
that they intend to exercise their enforcement discretion
until their final rule is published and in effect. The FDA
hopes 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.
5)CALIFORNIA LABELING LAW . Current law 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. Specified
facilities, such as grocery and convenience stores, public and
private school cafeterias, and vending machines, are exempted
from these requirements. Current law also defines calorie
content information, drive-through, menu board, and other
terms, for purposes of menu labeling and defines 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 law is that PPACA requires operators of 20 or
more vending machines to provide nutritional disclosure signs
for food items in the machines when the Nutrition Facts Panel
cannot be viewed by the purchaser, while state law excludes
vending machines from labeling requirements. Since the FDA
has not yet finalized their menu labeling regulations, it is
unknown how closely California law will align with the final
federal regulations. At the very least, state laws on menu
labeling will be superseded by federal law. However,
establishments like movie theaters and bowling alleys that are
not covered under the new federal law or its implementing
regulations will remain subject to existing state and local
laws.
6)RELATED LEGISLATION . SB 471 (Rubio) requires the state
Department of Social Services to seek necessary federal
approval to prohibit the purchase of sweetened beverages with
food stamps, as specified. SB 471 is a two-year bill pending
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in the Senate Human Services Committee.
7)PRIOR LEGISLATION .
a) SB 1420 requires 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.
b) 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 and would have
allowed food facilities to provide calorie information only
under specified circumstances. AB 2572 was held in Senate
Appropriations Committee Suspense File.
c) SB 120 (Padilla) of 2007, which was substantially
similar to SB 1420, was vetoed by Governor Schwarzenegger
who stated that it would place burdens and costs upon some
restaurant owners while imposing no burdens or costs on
others and provide restaurants with little flexibility for
how they provide consumers with nutritional information.
8)SUPPORT . Supporters, including the California Medical
Association and California Optometric Association, write that
the conformity in this bill will help to prevent obesity by
promoting healthy eating and responsible food choices by
individuals when dining out.
9)AUTHOR'S AMENDMENT . The author plans to offer an amendment to
add an urgency clause.
REGISTERED SUPPORT / OPPOSITION :
Support
California Medical Association
California Optometric Association
Consumer Federation of California
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Santa Clara County Board of Supervisors
Opposition
None on file.
Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097