BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 1486
AUTHOR: Lieu
AMENDED: April 16, 2012
HEARING DATE: April 25, 2012
CONSULTANT: Orr
SUBJECT : Food facilities: menu labeling.
SUMMARY : Requires retail food facilities that sell seafood and
operate 19 or more locations to provide the common name, country
of origin, and whether the seafood was wild-caught or raised to
consumers on a menu insert, brochure, or display.
Existing federal law:
1.Establishes the Federal Food, Drug, and Cosmetic Act (FFDCA),
enforced by the federal Food and Drug Administration (FDA), to
regulate the safety of food, drugs, and cosmetics.
2.Establishes the Fair Packaging and Labeling Act, which
requires that consumers of packaged commodities be provided
with accurate information as to its contents.
3.Establishes the Food Allergen Labeling and Consumer Protection
Act of 2004 (FALCPA), which requires food manufacturers to
clearly label food products to describe the presence of eight
major food allergens.
4.Establishes Country of Origin Labeling (COOL) to require
retailers to notify their customers with information regarding
the source of certain foods.
Existing state law:
1.Establishes the Sherman Food, Drug, and Cosmetic Law,
administered by the California Department of Public Health
(CDPH), to regulate the contents, packaging, labeling, and
advertising of food, drugs, and cosmetics.
2.Provides, under the California Retail Food Code (CalCode), for
the regulation of health and sanitation standards for retail
food facilities by CDPH and vests local health agencies with
primary responsibility for enforcement.
3.Deems any food to be misbranded for a variety of reasons,
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including if:
a. its labeling is false or misleading,
b. it is offered for sale under the name of another food,
c. it is an imitation of another food but its label does
not bear the word "imitation" immediately preceding the
food's name, or
d. its labeling does not conform to the nutrient content or
health claims set forth in the federal FDCA.
4.Makes it a misdemeanor to misbrand any food, and subjects
violators to fines of between $1,000 and $10,000 and/or
imprisonment, depending on the nature of the violation.
This bill:
1.Requires a retail food facility that offers or sells seafood
and operates as a chain with at least 19 other food facilities
doing business with the same name and offering similar menu
items, to identify the scientific common name of the seafood
item, the country where the seafood was raised or caught, and
whether the seafood was raised or caught wild on a display,
menu insert or brochure that is readily available to the
consumer.
2.Requires a retail food facility that has a drive-through and
uses a menu board at the drive-through to disclose, for any
seafood item offered for sale on the menu board, a specified
statement, upon request about the species of seafood, the
country where it was raised or caught, and whether it was
raised or caught wild.
3.Requires enforcement of these provisions by the local agencies
responsible for enforcing the provisions of CalCode.
4.Establishes fines for violations of these provisions ranging
from $50 to $500 for the first infraction, $100 to $1,000 for
the second violation within a five-year period, and $250 to
$2,500 for a third or subsequent violation within a five-year
period. Stipulates that a violation may not be found more than
once during an inspection visit. Allows an enforcement agency
to assess civil penalties instead, using the same range
specified for fines.
5.Prohibits a food facility from being liable for a violation of
these provisions if the facility was provided false or
inaccurate information from the wholesaler, distributor, or
other entity from which they receive their seafood.
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FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1.Author's statement. According to the author, SB 1486 would
help protect the public health and the environment while
providing consumers a more accurate understanding of the
source of seafood they eat in restaurants. The author claims
that seafood fraud is occurring at all points of the supply
chain, including at the restaurant level. Also called "bait
and switch," sellers of seafood will claim the fish is tuna,
when in fact it is a less expensive, perhaps less
environmentally-friendly fish such as farm-raised tilapia from
the Philippines. One recent study done by Oceana, the bill's
sponsor, found that over half of the fish tested in markets
and restaurants were mislabeled. This bill would require
restaurants with 19 or more chains that sell seafood to
provide specific information related to the country of origin,
the specific species of the seafood, and if the seafood was
farm-raised or wild-caught.
2.Seafood safety. In 2010 more than 80 percent of seafood
consumed in the United States-such as shrimp, salmon, and
tilapia-was imported, with about half coming from aquaculture
(fish farming), according to estimates from the Department of
Commerce's National Oceanic and Atmospheric Administration.
Because farmed fish can have high rates of bacterial
infections, farmers may treat them with drugs, such as
antibiotics and antifungal agents, to increase their survival
rates. Once drugs are introduced, their residue can remain in
the fish through harvesting, processing, and consumption.
According to a 2008 FDA report to Congress, the residues of
some of these drugs can cause cancer, allergic reactions, and
antibiotic resistance when consumed by humans. As imports of
farmed fish increase, so too do the concerns over the presence
of drug residues.
While the health benefits of seafood are well known and
documented, according to the Seafood Safe, a testing program
for mercury and PCBs in seafood, fish can also pose health
risks when contaminated with substances such as heavy metals
(e.g., mercury and lead), industrial chemicals (e.g.,
polychlorinated biphenyls�PCBs]) and pesticides (e.g.,
dichlorodiphenyltrichloroethane �DDT]) and eaten in large
quantities. These contaminants can come from industrial and
municipal discharges, agricultural practices, and storm water
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runoff that enter waterways and accumulate in sediments at the
bottoms of streams, rivers and lakes and coastal areas. These
contaminants can be particularly harmful if ingested in large
quantities by young children, pregnant women, and older
adults. Certain species of fish are known to be contaminated
with higher amounts of these chemicals, like swordfish, and
people are advised to limit consumption to protect their
health. Because of these potential safety issues, Seafood Safe
recommends that consumers keep track of their cumulative fish
consumption, especially if consuming more than one species.
3.Seafood fraud and mislabeling. With increased seafood imports
and decreased monitoring, fraud and deception in seafood
marketing is becoming more widespread, according to a July
2010 Congressional Research Service report on seafood
marketing. The report asserts that "the flesh of many fish
species is similar in taste and texture and, therefore, it is
difficult to identify species in fillet form, especially after
preparation for consumption." This can make it relatively easy
for a restaurant to replace an inexpensive fish species for a
more expensive species, and charge the consumer for the price
of the latter. Seafood fraud can also occur at the
manufacturing level, by knowingly packaging and mislabeling a
fish product. Some distributors have also been found to
knowingly sell restaurants and retailers lower-valued species,
claiming they are different species of a higher value.
Routine examinations of seafood products by the Department of
Commerce's National Marine Fisheries Service (NMFS) National
Seafood Inspection Laboratory between Fiscal Years 1988-97
found that 37 percent of fish and 13 percent of other seafood
(i.e. shellfish, edible seaweed) from randomly selected
vendors were mislabeled. Examples of commonly substituted
seafood includes yellowtail for mahi mahi, Alaskan pollock for
cod, sea bass for halibut, steelhead trout for salmon, tilapia
for snapper, and paddlefish for caviar. A more recent study
conducted by Oceana found 55 percent of fish samples collected
at restaurants in Los Angeles and Orange counties were
mislabeled, according to federal guidelines. The amount of
seafood mislabeling detected (according to FDA standards)
varied greatly among the three types of retail venues sampled,
with sushi venues ranking the highest (87 percent), grocery
stores the lowest (31 percent) and restaurants in the middle
(45 percent). Oceana found that nearly nine out of every ten
sushi samples from their targeted sampling were mislabeled. Of
those sushi samples, eight out of nine labeled as "white tuna"
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were actually escolar, which is a snake mackerel species that
has been responsible for food poisoning outbreaks.
4.Federal efforts to prevent seafood fraud. Three federal
agencies play key roles in detecting and preventing seafood
fraud: the Department of Homeland Security's Customs and
Border Protection (CBP), the NMFS, and the FDA. According to a
January 2009 Governmental Accountability Office (GAO) report
on seafood fraud, CBP and NMFS conduct several activities to
help detect and prevent seafood fraud. CBP reviews seafood
import documentation to detect schemes to avoid paying the
appropriate customs duties as seafood products enter the
country, among other things. NMFS addresses seafood fraud
through its voluntary, fee-for-service inspection program,
which includes inspecting seafood that retailers, among
others, are purchasing to verify its net weight and ensure the
species is correctly identified. According to NMFS officials,
NMFS inspects approximately one-third of the seafood consumed
in the United States.
For its report on seafood fraud, the FDA told GAO that it
focuses primarily on food safety and undertakes very few
fraud-related activities. Under the federal FFDCA, the FDA is
responsible for ensuring that the nation's food supply,
including imported seafood, is safe, wholesome, sanitary, and
properly labeled. FDA examines only about two percent of
imported seafood annually, and its primary seafood oversight
program does not address economic fraud risks. The FDA
maintains a publicly available list of seafood names that is
intended to help the industry correctly label products.
However, until 2009, the GAO claims the FDA had not fully
updated this list. GAO also notes that FDA's guidance to help
seafood processors comply with its seafood oversight program
does not reflect the FALCPA seafood labeling requirements to
include the species of fish or shellfish on product labels.
Because of the limited scope of FDA's seafood oversight
program, its mismanagement of the Seafood List, and its
failure to update its guidance to reflect the allergen
labeling requirement, GAO claims consumers have less assurance
that the seafood they purchase is correctly labeled.
5.Recent federal food labeling laws.
a. FALCPA. According to Michigan State University's
Institute for Food Laws and Regulations, FALCPA requires
food manufacturers to clearly label food products with
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common names to describe the presence of the eight major
food allergens, beginning January 1, 2006. These allergens
include milk, eggs, fish, crustacean shellfish, tree nuts,
peanuts, wheat, and soybeans. These eight major food
allergens are associated with 90 percent of all reported
allergic reactions to foods in the United States.
b. COOL. COOL requires retailers, such as full-line grocery
stores, supermarkets, and club warehouse stores, notify
their customers with information regarding the source of
certain foods, according to the United States Department of
Agriculture (USDA). Food products (covered commodities)
contained in the law include muscle cut and ground meats;
wild and farm-raised fish and shellfish; fresh and frozen
fruits and vegetables; peanuts, pecans, and macadamia nuts;
and ginseng. Regulations for fish and shellfish covered
commodities became effective in 2005. Fish and shellfish
are required to be labeled as either farmed or wild-caught.
However, processed or cooked foods do not fall under COOL.
For instance, raw shrimp is required to be labeled, but
cooked shrimp is not. Restaurants and small retail
establishments are not included in these provisions.
6.Federal legislation. Several bills have been introduced in
the U.S. Senate to address seafood fraud:
a. S. 50, the Commercial Seafood Consumer Protection Act
seeks to implement many of the recommendations of the 2009
GAO report on seafood fraud, including developing
agreements to improve federal agency coordination, testing
of seafood imports, tracking and labeling of seafood
products, inspection capacity, and enforcement.
b. S. 52, the International Fisheries Stewardship and
Enforcement Act would increase enforcement capabilities and
establish strong new civil and criminal penalties for
mislabeling of fish and the trade and sale of illegal,
unreported, and unregulated (IUU) harvested fish.
c. S. 1980, the Pirate Fishing Elimination Act includes
provisions to close U.S. ports to foreign IUU fishing
vessels and vessels supporting IUU activity and penalize
related activities.
7.Related legislation. AB 1616 (Gatto) would establish the
California Homemade Food Act to regulate the production and
sale of certain non-potentially hazardous foods prepared in a
home kitchen. AB 1616 is pending hearing in the Assembly
Appropriations Committee.
8.Prior legislation. AB 88 (Huffman) of 2011 would have
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required that genetically engineered (GE) salmon or other
finfish products prepared from those fish or the progeny of GE
fish be conspicuously disclosed on the label. GE fish without
this label will be considered misbranded. AB 88 failed passage
in the Assembly Appropriations Committee.
AB 1217 (Monning) Chapter 279, Statutes of 2009, requires the
Ocean Protection Council to develop and implement a voluntary
sustainable seafood promotion program. Requires development of
a label to identify and market seafood caught in California
that is certified to meet internationally accepted
sustainability standards.
SB 1121 (Migden) of 2008 would have required the labeling of
all food containing genetically modified animals. SB 1121 was
held in the Senate Appropriations Committee.
SB 1576 (Florez) of 2008 would have required the retailer of
any meats and perishable agricultural commodities to provide
information on the country of origin of the item by means of a
label or other specific means at the final point of sale to
consumers. SB 1576 was held in the Senate Appropriations
Committee.
AB 2079 (Emmerson), Chapter 73, Statutes of 2008, deems food
to be misbranded if the labeling does not conform to federal
food allergen labeling requirements.
AB 1058 (Koretz) of 2005 would have required retailers of beef
products to label beef produced outside the United States with
the country of origin, as specified. AB 1058 was vetoed.
9.Support. The Monterey Bay Aquarium (MBA) believes that the
lack of information about seafood in the marketplace makes it
difficult for consumers to make sustainable seafood choices.
MBA states that adding to the confusion, seafood is often
mislabeled, and many of the same seafood items are sold under
different names in different places. Some seafood, including
in many restaurants, is not labeled at all. MBA believes that
this bill would help overcome these challenges by providing
consumers with more accurate information about their seafood
choices. MBA asserts that, this information, coupled with
advice from MBA's Seafood Watch program, would enable
consumers to make more informed choices when ordering seafood
in California restaurants, and as a result, both consumers and
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businesses will be better equipped to support sustainable
seafood and sustain healthy ocean ecosystems into the future.
10.Opposition. The California Retailers Association (CRA)
believes this measure sets a bad precedent in requiring
food-specific labeling without an evident need or health and
safety risk. CRA claims that their member restaurants are
already highly regulated for food safety and are subject to
menu labeling requirements to reflect caloric content. CRA
fears that further regulations on food products could be
endless and at some point unreasonable, especially if not
needed due to the lack of a health and safety concern.
11.Policy comments.
a. Responsibility on the restaurants? The supply chain for
seafood can involve a large number of intermediaries
between the fisherman and the consumer, including foreign
and domestic processors and distributors. This means there
are several places along the chain where fraud can occur.
By the time the seafood reaches a restaurant, is it fair
to place the burden of assuring the seafood's authenticity
solely on restaurants, given the supply chain?
b. Enforcement. Local environmental health officers are
currently responsible for enforcing food safety laws, and
also enforce recently-implemented menu labeling laws. While
they may be able to inspect a facility's menus, displays or
brochures as outlined in this bill to ensure the seafood
menu items are properly labeled, they may not be able to
authenticate that the seafood sold is actually the seafood
that the menus, displays or brochures claim it is. Even if
this bill becomes law, it is unclear if consumers will
actually receive the particular seafood they believe they
are buying.
c. Federal involvement. Since seafood is caught and
distributed from around the world and is subject to several
federal labeling and safety laws, it may be more prudent or
efficient for the federal government, through the FDA or
other entity, to act on this issue, as opposed to the
state. The author may wish to insert a caveat that allows
the bill to be operative only until the federal government
acts to prevent this type of fraud.
12.Author's amendments. The author asks the Committee to approve
an amendment to remove a provision deeming food facilities not
liable for violations if the wholesaler, seafood distributor,
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or other entity providing seafood gives the food facility
false information.
SUPPORT AND OPPOSITION :
Support: Oceana (sponsor)
Monterey Bay Aquarium
Oppose: California Restaurant Association
California Retailers Association
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