BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 1990
AUTHOR: Gordon
AMENDED: June 16, 2014
HEARING DATE: June 25, 2014
CONSULTANT: Marchand
SUBJECT : Community food production.
SUMMARY : Permits a "community food producer," defined as a
producer of agricultural products on land that is not zoned for
agricultural use, to sell whole uncut fruits or vegetables, or
unrefrigerated shell eggs, directly to the public, including
restaurants, if the community food producer follows certain
requirements.
Existing law:
1.Establishes the California Retail Food Code (CRFC), which
governs all aspects of retail food safety and sanitation in
California under the CRFC. Specifies that primary
responsibility for enforcement of the CRFC is with local
enforcement agencies, typically local environmental health
departments (LEHDs).
2.Requires, under the CRFC, that food be obtained from "approved
sources," which is defined as sources that comply with all
applicable laws, or a producer, manufacturer, distributor, or
food facility that is acceptable to the enforcement agency
based on a determination of conformity with applicable laws,
or, in the absence of applicable laws, with current public
health principles and practices, and generally recognized
industry standards that protect public health.
3.Deems as coming from an approved source any whole uncut fruit
or vegetable, or unrefrigerated shell egg, grown or produced
in compliance with all applicable federal, state, or local
laws, regulations, and food safety guidelines issued by a
regulatory agency.
4.Defines "potentially hazardous food" to mean any food capable
of supporting growth of infectious or toxigenic
micro-organisms when held at temperatures above 45 degrees
Fahrenheit.
Continued---
AB 1990 | Page 2
5.Defines "farm stands" as premises established pursuant to
specified provisions of the Food and Agricultural Code, and
limits the food sales at farm stands to whole produce and
shell eggs. Prohibits live animals, birds, or fowl from being
kept or allowed within 20 feet of any area where food is
stored or held for sale.
6.Defines "community-supported agriculture program" as a program
under which a registered direct marketing producer, or a group
of registered direct marketing producers, grow food for a
group of California consumer shareholders or subscribers who
pledge or contract to buy a portion of the future crop, animal
production, or both, of the producer.
7.Permits farmers to sell fresh fruits, nuts and vegetables that
they produce, directly to the public at a certified farmers'
market, a field retail stand, or a farm stand, and exempts
this produce from certain minimum size, packaging and labeling
requirements, subject to specified conditions. Limits farmers
to selling produce that does not conform to size, packaging
and labeling requirements only to consumers who are end users,
or individuals or entities that subsequently sell the produce
directly to end users.
8.Requires a producer that markets whole produce, shell eggs, or
processed foods through a community-supported agriculture
program to register as a direct marketing producer. Requires
the annual registration fee for registration as a direct
marketing producer to be set at the actual cost of
registration, with a maximum fee of $100 annually.
9.Requires the California Department of Food and Agriculture
(CDFA), in consultation with the California Department of
Public Health (CDPH) and local health officers or designees,
to publish and post on CDFA's Internet Web site small farm
food safety guidelines on the safe production, processing, and
handling of both non-potentially hazardous and potentially
hazardous foods.
This bill:
1.Defines "community food producer" as a producer of
agricultural products on land that is not zoned for
agricultural use but is otherwise in compliance with
applicable local land use and zoning restrictions, including,
but not limited to, restrictions governing personal gardens,
community gardens, school gardens, and culinary gardens.
AB 1990 | Page
3
2.Exempts from the definition of "food facility," for purposes
of the CRFC, a "community food producer" as defined by this
bill.
3.Defines "gleaner," for purposes of the CRFC, as a person who
legally gathers remnants of an agricultural crop or harvests
part of, or all of, an agricultural crop made available by the
owner of the agricultural crop.
4.Permits a community food producer or a gleaner, as these terms
are defined by this bill, unless prohibited by a local
jurisdiction that has adopted an ordinance regulating
community food production, to sell or provide whole uncut
fruits or vegetables, or unrefrigerated shell eggs, directly
to the public, to a restaurant, or to a cottage food operation
if the community food producer meets all of the following
requirements, in addition to any requirements imposed by a
locally adopted ordinance:
a. Requires agricultural products to be grown or
produced in compliance with all applicable federal,
state, or local laws, regulations, and food safety
guidelines issued by a regulatory agency;
b. Requires agricultural products to be labeled
with the name and address of the community food
producer;
c. Requires conspicuous signage to be provided in
lieu of a product label if the agricultural product is
being sold by the community food producer on the site
of the production. Requires this signage to include
the name and address of the community food producer;
d. Requires best management practices (BMPs), as
described by CDFA regarding small farm food safety
guidelines on safe production, processing, and
handling of both non-potentially hazardous and
potentially hazardous foods; and,
e. Limits egg production to 15 dozen eggs per
month.
5.Permits a local city or county health enforcement office to
require a community food producer to register with the city or
county, and to provide specified information, including the
name, address, and telephone number of the community food
AB 1990 | Page 4
producer.
6.Permits an enforcement officer to enter into, and inspect the
operations of, a community food producer in response to a food
safety recall or food safety complaint, and permits the
enforcement officer to recover reasonable costs associated
with an inspection from the community food producer.
7.Permits an enforcement officer to issue a community food
producer a cease and desist order for violations of the
provisions of this bill, upon which the community food
producer is prohibited from further sales until the operations
of the community food producer have been re-inspected and
cleared by the enforcement officer's agency.
8.Permits a community food producer, at any time within 15
calendar days after being issued a cease and desist order, to
request in writing a hearing to show cause why the prohibition
of further sales is not warranted. Requires this hearing to be
held within 15 calendar days of the receipt of a request for a
hearing.
9.Specifies that violations of the requirements of a community
food producer is subject to existing penalty provisions of the
CRFC, which provides for misdemeanor penalties and fines of
between $25 and $1,000 per offense.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, this bill has negligible fiscal impact to CDPH and
has potentially minor enforcement costs to local public health
agencies, partially recoverable through inspection fees, with
any remainder likely reimbursable.
PRIOR VOTES :
Assembly Agriculture:6- 0
Assembly Appropriations:17- 0
Assembly Floor: 73- 1
COMMENTS :
1.Author's statement. According to the author, the agriculture
movement is experiencing burgeoning popularity, and California
has become a trailblazer in progressive food and farm
legislation. Additionally, there has been a dramatic growth in
a wide range of small community or urban gardens throughout
the past decade. These small productions sites include
personal gardens, culinary gardens, community gardens, and
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5
school gardens. AB 224 (Gordon), Chapter 404, Statutes 2013,
last year's Community Supported Agriculture (CSA) legislation
provided the platform to clarify the regulation of "community
gardens" from a food safety perspective. However, food
production remains governed by a patch-work quilt of disparate
policies. Many local agencies are unclear as to whether
current law allows the direct sale of produce from these
community gardens without explicit authorization by the LEHDs.
Furthermore, no statewide guidance currently exists with
respect to the necessary regulatory oversight given the wide
range scale and scope of such operations. The statewide
approach in this bill promotes safe community food while
recognizing local land use and zoning authority. By adhering
to local land use zoning requirements, it would reduce demands
on local governments to adopt individual local ordinances.
This bill would also provide a single set of BMPs consistent
with recently enacted cottage food laws and CSA laws.
2.Direct Marketing Ad Hoc Committee report. CDFA convened a
Direct Marketing Ad Hoc Committee to review and analyze the
various business functions of the Direct Marketing Program
within CDFA from October 2011 through September 2012. The
Direct Marketing Program provides opportunities for California
farmers to market their products directly to consumers with
exemptions from minimum size, labeling, standard pack, and
container requirements. The Direct Marketing Program is
intended to provide a viable channel for California farmers to
market their agricultural products directly to the consumer,
thereby providing a significant source of revenue for
participating farmers. The most common form of direct
marketing is through certified farmers' markets, but also
includes farm stands, field retail stands and farm stands, and
subscription-based CSA programs.
According to the report:
"Produce from farms in California is considered to be from
"approved sources" pursuant to the California Health and
Safety Code. However, there may generally be no specific
food safety oversight by any regulatory agency except where
the product or commodity is covered under a marketing order
such as the Leafy Green Marketing Agreement. Concern over
food safety has recently been elevated with the rapid
increase in small scale farming operations such as
community and backyard gardens. Because California law does
not define a "small farm" there is no clear delineation of
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where food safety oversight begins and ends. Local
environmental health officers and county agricultural
commissioners are expected to provide guidance and
oversight of these small scale operations in some cases.
Temperature control is also a food safety concern when
potentially hazardous foods require temperature control for
safety."
The Ad Hoc Committee included a Gardens Subcommittee which
looked at culinary, school, community, victory, and other
small-scale plots used for growing fresh fruits and
vegetables. According to the report, due to issues concerning
land use, zoning, and food safety requirements, several local
agencies have started to formalize an approval process to
allow these gardens to grow, donate, and sell the produce
grown. The subcommittee determined that "the sale of produce
from these gardens should be regulated in a manner consistent
with CSAs and retail field stands or farm stands under the
CRFC." The subcommittee recommended that when the products of
these gardens enter the stream of commerce, registration and
self-certification should be mandated for BMP and good
agricultural practices (GAP). The subcommittee encouraged
CDFA, CDPH, and local and environmental health agencies to
collaborate in the development of web-based information on
BMPs/GAPs for the production, distribution, and consumption of
fruits and vegetables grown in these gardens. Finally, the
subcommittee stated that if the home garden sells the produce
off-site at a farmer's market or to local restaurants, the
consumer cannot see firsthand under what conditions the
produce is grown, and the garden operator should be subject to
registration and certification of good growing practices.
3.Related legislation. AB 2539 (Ting), makes various changes to
the rules governing certified farmers' markets, including
requiring all meat products offered for sale in a farmers'
market to be from approved sources and to be maintained at 41
degrees Fahrenheit, prohibiting smoking of nicotine products
within 25 feet of the commerce area of the farmers' market,
and prohibiting the self-serving of food samples. AB 2539
passed out of this committee on June 18, 2014, on a 6-2 vote.
4.Prior legislation. AB 224 (Gordon), Chapter 404, Statutes of
2013, defined CSA within the direct marketing program
regulated by the CDFA. This bill would establish regulatory
parameters and require CSA registration fees to fund
administration and related programmatic costs, as specified.
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AB 996 (Dickinson), of 2013, would have amended certified
farmers' market law requirements, fees, and related
provisions, and added community-supported agriculture to the
definition of direct marketing. AB 996 was held under
submission in the Assembly Appropriations Committee.
AB 1616 (Gatto), Chapter 415, Statutes of 2012, provided a
regulatory framework for the production in home kitchens of
food for sale, referred to as cottage food operations.
AB 2168 (Jones), Chapter 447, Statutes of 2008, expanded the
definition of direct marketing to include farm stands, field
retail stands, and other forms of direct marketing, revised
related definitions, and authorized CDFA to adopt regulations
to regulate direct marketing, as specified.
AB 593 (Strom-Martin), Chapter 833, Statutes of 1999, codified
regulations exempting direct marketers from specified packing
and labeling standards, amends fee structures, and authorized
farmers' markets to establish rules and procedures.
5.Policy comment. Legislation enacted last year establishing a
regulatory framework for CSA (AB 224) built upon a model of
regulation that provides for a limited regulatory structure
for the direct marketing of agricultural products. Other forms
of direct marketing include certified farmers' markets, field
retail stands, and farm stands. Those other forms of direct
marketing producers are not only included in the CRFC (which
is in the Health and Safety Code), but are also defined and
must comply with certain requirements that are delineated in
the Food and Agricultural Code (FAC), and specifically
exempted from other requirements in the FAC. For example, the
other forms of direct marketing producers are specifically
exempted from fruit, nut and vegetable standardization laws
that regulate quality, maturity, variety, grade, size,
container and packing requirements. While the concept of a
"community food producer" appears to be another form of direct
marketing producer, this bill does not include community food
producers in the list of direct marketing producers that are
listed in the FAC, at least in part because doing so would
require the payment of a registration fee.
6.Support. The California Association of Environmental Health
Administrators (CAEHA) is sponsoring this bill to promote
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community food production while protecting public health.
CAEHA states that this bill fills a regulatory void in the
oversight of food production in urban settings. CAEHA states
that this bill deems food grown on non-agriculturally zoned
land to be approved, provided the production is done in
compliance with basic agricultural and food safety best
management practices. This bill follows up on AB 224 (Gordon)
from last year, which provided similar regulatory oversight
for the community supported agriculture operations - the
veggie boxes. CAEHA states that like AB 224, this bill seeks
to find a way to provide regulatory oversight commensurate
with the low public health risk of these operations. Because
of the rapid expansion of urban agriculture through community
gardens, culinary gardens, school gardens and even personal
gardens, local agencies have had to respond to concerns over
food safety and land use. According to CAEHA, a small number
of local governments have established local ordinances or
guidelines for this community food production, but there is a
lack of statutory authority and consistency - two factors that
tend to chill the further expansion of this positive movement.
By statutorily exempting these community food production sites
from being regulated as a full-scale food facility and by
requiring adherence to sound growing and food safety
practices, subject to enforcement by local environmental
health inspectors on a complaint basis, CAEHA believes this
bill finds the balance between public health protection and
sustainable food production. Furthermore, this bill keeps
intact the necessary local government land use, zoning and
business licensing. Roots of Change supports this bill for
similar reasons. The Community Alliance with Family Farmers
(CAFF) states in support that farmers in California have a
right to erect a farm stand on their property or at the
nearest paved road and sell their produce directly to the
public without a permit. Farmers are also permitted to sell
directly to the public through farmers' markets or CSA, but
they must be registered and pay a fee to do so. CAFF states
that this bill would give urban gardeners a right to sell
whole produce or shell eggs directly to the public without
obtaining a health permit, unless agricultural production is
precluded by specific zoning restrictions.
7.Opposition. The Sustainable Economies Law Center (SELC)
states that it appreciates the intentions of this bill and
recognizes the attempt to address the confusion that
small-scale produce growers and regulators struggle with in
trying to interpret the very vague sections of CRFC that
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require foods to come from "approved sources." However, SELC
states that by clarifying that small-scale producers can sell
produce directly to consumers and restaurants, it fears that
it could be interpreted by local health and agricultural
regulators as saying that these growers cannot legally sell or
donate to grocery stores, food banks, and other food
facilities. SELC is also concerned that some jurisdictions may
choose to impose the registration requirements permitted under
this bill to all producers who may meet the definition of
"community food producer." There are some small-scale food
producers who grow food on land that is not zoned as
agricultural who already obtain a Certified Producers'
Certificate through CDFA and their local agricultural
commission, thus they have committed to safe food handling and
are already deemed an approved source. SELC states that there
is need for clarification on the confusing definition of
"approved source" in the Health and Safety Code. However, this
bill as currently written poses a great risk of increasing
confusion and increasing regulatory burdens on some of
California's small-scale food producers.
8.Oppose unless amended. The Association of California Egg
Farmers (ACEF) opposes this bill unless all reference to
"unrefrigerated shell eggs" is removed from the bill. ACEF
states that California consumers are demanding safe and
healthy food. ACEF states that California's egg farmers have
long been at the forefront of developing programs and
practices to aggressively combat the spread of food borne
pathogens to protect public health, maintain consumer
confidence and sell safe, fresh, wholesome eggs. The pinnacle
of California's efforts to protect California's consumers was
the creation of the California Egg Quality Assurance Program
(CEQAP). This program was developed in cooperation with CDFA,
the U.S. Department of Agriculture, the University of
California Cooperative Extension, the California Animal Health
and Food Safety Laboratory, the California Department of
Health Services, the U.S. Food and Drug Administration,
accredited poultry veterinarians and shell egg producers.
Since its inception, California egg consumers have not
experienced one shell egg trace-back associated with human
illness in more than 15 years from a California grown egg.
Prior to implementation of these standards, Salmonella
contamination of eggs was an issue. When a food safety issue
arises, all egg farmers suffer. In 2010 when there was a
recall of eggs, sales slumped significantly for all eggs in
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California. When egg farmers want to sell their products to
restaurants and retail stores, meeting the basic food safety
standards is paramount. This bill provides an exemption based
on where eggs are farmed, not how or by meeting specific
standards. ACEF continues to support all egg farmers and our
consumers in California. Therefore, ACEF states it cannot
justify providing an exemption to food safety standards for
farms based on where they are located, and must oppose AB 1990
unless eggs are removed from the bill.
9.Technical amendment. This bill permits both a community food
producer and a gleaner, as both of these terms are defined in
this bill, to sell fruits, vegetables and shell eggs to the
public, as long as certain requirements are followed. However,
much of the rest of the bill, including the provisions that
allow local health enforcement officers to respond to a food
safety complaint, only use the term "community food producer."
This bill should be amended to clarify that all of the
provisions of this bill, including the enforcement provisions,
apply to both a community food producer and a gleaner.
SUPPORT AND OPPOSITION :
Support: California Conference of Directors of Environmental
Health (sponsor)
California Association for Micro Enterprise
Opportunity
Community Alliance with Family Farmers
Roots of Change
Oppose: Association of California Egg Farmers (unless amended)
Sustainable Economics Law Center
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