Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for retail food facilities and provides for the enforcement of those standards by local health agencies and by the State Department of Public Health, as specified. Under existing law, unless a local jurisdiction adopts an ordinance prohibiting the activity, a community food producer or gleaner may sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or a cottage food operation if the community food producer meets specified requirements. Existing law authorizes a local city or county health enforcement office to require a community food producer or gleaner to register with the city or county to provide specified information. A violation of the code is a crime.

This bill would remove the local ordinance prohibition exception, and would authorize a community food producer to sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, a permitted food facility, or a cottage food operation, and authorize a gleaner to sell or provide the same food produced by a community food producer directly to the public without registration or to donate the same food produced by a community food producer to a food bank or food kitchen without registration, if specified requirements are met. The bill would prohibit a local city or county health enforcement office, unless otherwise authorized by a local ordinance adopted by a local jurisdiction, from requiring a community food producer to register with the city or county or to meet additional requirements if the community food producer meets any of the specified conditions. The bill would require a community food producer or gleaner that sells or provides the above-mentioned food directly to the public, and a food bank or food kitchen that receives the same food donated by a community food producer or gleaner, pursuant to these provisions to retain records related to the sale, provision, or donation of food for 30 days, as specified. By expanding the definition of a crime, this bill would impose a state-mandated local program.

Existing law exempts from the definition of food facility premises operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted on premises controlled by the producer.

This bill would instead exclude from the definition of food facility an outlet or location, including, but not limited to, premises, operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted at an outlet or location controlled by the producer.

This bill would incorporate additional changes to Section 113789 of the Health and Safety Code, proposed by AB 143 and AB 226, that would become operative only if this bill and either or both of those bills are chaptered and become effective January 1, 2016, and this bill is chaptered last.

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 no reimbursement is required by this act for a specified reason.

Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for retail food facilities and provides for the enforcement of those standards by local health agencies and by the State Department of Public Health, as specified. Under existing law, unless a local jurisdiction adopts an ordinance prohibiting the activity, a community food producer or gleaner may sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or a cottage food operation if the community food producer meets specified requirements. Existing law authorizes a local city or county health enforcement office to require a community food producer or gleaner to register with the city or county to provide specified information. A violation of the code is a crime.

This bill would remove the local ordinance prohibition exception, and would authorize a community food producer to sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, a permitted food facility, or a cottage food operation, and authorize a gleaner to sell or provide the same food produced by a community food producer directly to the public without registration or to donate the same food produced by a community food producer to a food bank or food kitchen without registration, if specified requirements are met. The bill would prohibit a local city or county health enforcement office, unless otherwise authorized by a local ordinance adopted by a local jurisdiction, from requiring a community food producer to register with the city or county or to meet additional requirements if the community food producer meets any of the specified conditions. The bill would require a community food producer or gleaner that sells or provides the above-mentioned food directly to the public, and a food bank or food kitchen that receives the same food donated by a community food producer or gleaner, pursuant to these provisions to retain records related to the sale, provision, or donation of food for 30 days, as specified. By expanding the definition of a crime, this bill would impose a state-mandated local program.

Existing law exempts from the definition of food facility premises operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted on premises controlled by the producer.

This bill would instead exclude from the definition of food facility an outlet or location, including, but not limited to, premises, operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted at an outlet or location controlled by the producer.

This bill would incorporate additional changes to Section 113789 of the Health and Safety Code, proposed by AB 143 and AB 226, that would become operative only if this bill and either or both of those bills are chaptered and become effective January 1, 2016, and this bill is chaptered last.

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 no reimbursement is required by this act for a specified reason.

Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for retail food facilities and provides for the enforcement of those standards by local health agencies and by the State Department of Public Health, as specified. Under existing law, unless a local jurisdiction adopts an ordinance prohibiting the activity, a community food producer or gleaner may sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or a cottage food operation if the community food producer meets specified requirements. Existing law authorizes a local city or county health enforcement office to require a community food producer or gleaner to register with the city or county to provide specified information. A violation of the code is a crime.

This bill would remove the local ordinance prohibition exception, and would authorize a community food producer or gleaner to sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, and authorize a permitted food facility. facility, a cottage food operation, or a gleaner to sell or provide the same food produced by a community food producer directly to the public without registration or to donate the same food produced by a community food producer to a food bank or food kitchen without registration, if specified requirements are met. The bill would provide that prohibit a local city or county health enforcement office may only require, office, unless otherwise authorized by a local ordinance adopted by a local jurisdiction, from requiring a community food producer or gleaner to register with the city or county and to provide specified information or to meet additional requirements if the community food producer or gleaner does not meet meets any of the specified conditions. The bill would require a community food producer or gleaner that sells or provides the above-mentioned food directly to the public, and a food bank or food kitchen that receives the same food donated by a community food producer or gleaner, pursuant to these provisions to retain records related to the sale, provision, or donation of food for 30 days, as specified. By expanding the definition of a crime, 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 no reimbursement is required by this act for a specified reason.

Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for retail food facilities and provides for the enforcement of those standards by local health agencies and by the State Department of Public Health, as specified. Under existing law, unless a local jurisdiction adopts an ordinance prohibiting the activity, a community food producer or gleaner may sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or a cottage food operation if the community food producer meets specified requirements. Existing law authorizes a local city or county health enforcement office to require a community food producer or gleaner to register with the city or county to provide specified information. A violation of the code is a crime.

This bill would remove the local ordinance prohibition exception, and would authorize a community food producer or gleaner to sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to a permitted food facility. The bill would provide that a local city or county health enforcement office may only require, unless otherwise authorized by a local ordinance adopted by a local jurisdiction, a community food producer or gleaner to register with the city or county and to provide specified information if the community food producer or gleaner does not meet any of the specified conditions. By expanding the definition of a crime, 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 no reimbursement is required by this act for a specified reason.

Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for retail food facilities and provides for the enforcement of those standards by local health agencies and by the State Department of Public Health, as specified. Under existing law, unless a local jurisdiction adopts an ordinance prohibiting the activity, a community food producer or gleaner may sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or a cottage food operation if the community food producer meets specified requirements. A violation of the code is a crime.

This bill would authorize a community food producer or gleaner to sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to a permitted food facility. By expanding the definition of a crime, 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 no reimbursement is required by this act for a specified reason.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 234

Author:(Gordon)

As Amended Ver:September 4, 2015

Majority vote

Original Committee Reference: HEALTH

SUMMARY: Revises provisions of law governing community food producers or gleaners by allowing them to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to a permitted food facility, not just a restaurant, and limits the ability of a local environmental health officer to require community food producers or gleaners to register with the local enforcement entity only if the food producers or gleaners do not meet certain conditions.

The Senate amendments:

1. Eliminate the ability of a local jurisdiction to adopt an ordinance prohibiting a community food producer or gleaner from selling or providing whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public or to food facilities.

2. Restrict the ability of a local health enforcement agency to require a community food producer to be registered with the local enforcement agency, unless otherwise authorized by a locally adopted ordinance, by prohibiting registration if the community food producer does not meet any of the following conditions:

   1. Produce is sold on the premises controlled by the community food producer;

   2. Produce is donated to a food bank or food kitchen that is registered or permitted by a federal, state, or local health agency; or

   3. Produce is sold in a food facility permitted by a federal, state, or local health agency.

3. Specify conditions under which a gleaner may sell directly to the public or donate to a food bank without requiring registration with the local health enforcement agency.

4. Incorporate amendments to Health and Safety Code Section 113789 proposed by this bill, AB 226 (Atkins) of the current legislative session, and AB 143 (Wood), Chapter 164, Statutes of 2015, which was recently signed by the Governor.

AS PASSED BY THE ASSEMBLY, this bill expanded from "restaurant" to the more general "food facility" the type of facility to which a community food producer (CFP) or gleaner can sell fruits, vegetables, or eggs.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: According to the author, the local 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 community and urban gardens, as well as locally produced food, throughout the past decade. These small production sites include personal gardens, culinary gardens, community gardens, and school gardens. This bill expands on efforts in recent years to allow gleaners and CFPs to engage in direct sales of produce to the public. The author states that this bill is responsive to the Governor's veto message. By striking the word "restaurant" and replacing it with "food facility," this bill ensures explicit clarification as to what entities CFPs are allowed to sell or provide whole uncut fruit, vegetables or unrefrigerated shell eggs to.

Last year, AB 1990 (Gordon), Chapter 580, Statutes of 2014, defines "CFPs" and "gleaners," and allows CFPs or gleaners to sell or provide whole uncut fruits or vegetables or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or to a cottage food operation, if the CFP complies with a variety of health and safety requirements or Best Management Practices established by CDFA and posted on their Web site.

Upon signing AB 1990 in September 2014, Governor Brown issued the following signing statement: "There is some concern that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. This is not my intent. The language in this bill is clearly expansive, not restrictive."

This bill would allow a CFP to sell their product directly to any type of food facility, instead of just restaurants. This would include public and private school cafeterias, some licensed health care facilities, commissaries, mobile food facilities, mobile support units, and temporary food facilities.

The California Association of Environmental Health Administrators, sponsor of the bill, supports this work as a continued effort to facilitate access to healthy foods like fresh fruit and vegetables for all Californians. They state that in 2012, Community Supported Agriculture (CSA) legislation AB 224 (Gordon), Chapter 404, Statutes of 2013, provided the platform to clarify the regulation of "community gardens and community supported agriculture" from a food safety perspective. Then, the statewide approach in AB 1990 promoted safe community food while recognizing local land use and zoning authority. By adhering to local land use zoning requirements, it reduced demands on local governments to adopt a patchwork quilt of individual local ordinances. It provided a statewide set of best management practices consistent with recently enacted cottage food law, AB 1616 (Gatto), Chapter 415, Statutes of 2012, and CSA laws. To remedy this limitation, this bill will explicitly allow all community food produced in compliance with these best management practices to be sold at all retail food facilities by striking the word “restaurant” and replacing it with "food facility".

The Association of California Egg Farmers opposes this bill unless all reference to "unrefrigerated shell eggs" is removed from this bill. They believe that this bill does not adequately ensure that food safety standards are met for eggs. They argue that under this legislation, eggs contaminated with Salmonella could easily make hundreds, maybe thousands, of Californians sick in just one week.

Analysis Prepared by: Dharia McGrew / HEALTH / (916) 319-2097 FN: 0002267

 THIRD READING  

Bill No: AB 234

Author: Gordon (D)

Amended: 9/4/15 in Senate

Vote: 21

SENATE HEALTH COMMITTEE: 8-0, 6/24/15

AYES: Hernandez, Nguyen, Mitchell, Monning, Nielsen, Pan, Roth, Wolk

NO VOTE RECORDED: Hall

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 62-10, 5/11/15 - See last page for vote

SUBJECT: Food: sale

SOURCE: California Association of Environmental Health Administrators

DIGEST: This bill revises provisions of law governing community food producers and gleaners by allowing community food producers to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to a permitted food facility, not just a restaurant, and by limiting the ability of a local environmental health officer to require community food producers or gleaners to register with the local enforcement under specified conditions.

Senate Floor Amendments of 9/4/15 permit gleaners to donate produce to a food bank or food kitchen without having to be registered, require that records are retained for 30 days, incorporate chaptering out amendments, and make other minor and clarifying changes.

ANALYSIS:

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.

2. 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.

3. 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.

4. Defines “gleaner” 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.

5. Permits a community food producer or a gleaner, 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 (up to 15 dozen per month), 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:

1. 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;

2. Requires agricultural products to be labeled with the name and address of the community food producer;

3. 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; and,

4. 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.

6. 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 producer.

This bill:

1. Clarifies and expands the ability of a community food producer to sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, by allowing them to sell to any food facility, and not just a restaurant, in addition to direct sales to the public and to a cottage food operation.

2. Eliminates the ability of a local jurisdiction to adopt an ordinance prohibiting a community food producer or gleaner from selling or providing whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public or to food facilities.

3. Restricts the ability of a local health enforcement agency, unless otherwise authorized by a locally adopted ordinance, to require a community food producer to be registered with the local enforcement agency or to meet requirements in addition to those required in existing law, if the community food producer or gleaner meets any of the following conditions:

1. Agricultural products are sold on the outlet or location, including, but not limited to, premises, controlled by the community food producer;

2. Agricultural products are donated to a food bank or food kitchen that provides food at no cost to consumers; or

3. Produce is sold in a food facility permitted by a federal, state, or local health agency.

4. Permits a gleaner to donate whole uncut fruits or vegetables, or unrefrigerated shell eggs, produced by a community food producer, to a food bank or food kitchen without being registered by the local enforcement agency if the gleaner meets both of the following requirements:

1. Best management practices, as specified, regarding small farm food safety guidelines on handling of both nonpotentially hazardous and potentially hazardous foods; and,

2. Retention of records regarding the provision of the food for 30 days.

5. Requires a community food producer or gleaner who sells or provides whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public to retain records related to the sale or provision of the food for 30 days, including the type of food sold and the date of sale.

6. Requires a food bank or food kitchen that receives whole uncut fruits or vegetables, or unrefrigerated shell eggs, donated by a community food producer or gleaner, to retain records related to the donation of the food for 30 days, which is required to include the type of food received, the date of receipt, and the name and contact information of the community food producer or gleaner that donated the food.

7. Revises an exemption from the definition of a “food facility,” for purposes of the body of law governing retail food facilities, which currently exempts “premises operated by a producer selling only produce grown by the producer or shell eggs,” to instead exempt “an outlet or location, including, but not limited to, premises” operated by a producer, provided the sales are conducted at an outlet or location controlled by the producer.

8. Limit the requirement that agricultural products be labeled with the name and address of the community food producer, to instead only require agricultural products that are packaged to have the package labeled.

9. Incorporates chaptering-out amendments to ensure that the provisions of this bill, and the provision of both AB 143 (Wood) and AB 226 (Atkins), in the case that all three bills are signed into law, do not chapter each other out.

Comments

1. Author’s statement. According to the author, this bill is needed because even though the Governor signed AB 1990 (Gordon, Chapter 580, Statutes of 2014) to allow community food producers or gleaners to engage in direct sales of produce to the public, there were concerns that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. Therefore, this bill clarifies and expands on AB 1990 by providing explicit clarification as to what entities community food producers are allowed to sell or provide whole uncut fruit, vegetables or unrefrigerated shell eggs.

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 community-supported agriculture (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 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.

Prior Legislation

AB 1990 (Gordon, Chapter 580, Statutes of 2014), permitted a “community food producer,” defined as a producer of agricultural products on land that is not zoned for agricultural use, and “gleaners,” as defined, to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, including restaurants, if the community food producer or gleaner follows certain requirements. The Governor issued the following statement when signing this bill into law: “I am signing Assembly Bill 1990 which allows gleaners and community food producers to engage in direct sales of produce to the public. There is some concern that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. This is not my intent. The language in this bill is clearly expansive, not restrictive.

AB 2539 (Ting, Chapter 907, Statutes of 2014) made various changes to the rules governing certified farmers’ markets, including requiring all harvested, cut, wrapped, or otherwise processed meat, poultry, and fish products offered for sale in a farmers’ market to be from approved sources and to be maintained at 41 degrees Fahrenheit.

SB 144 (Runner, Chapter 23, Statutes of 2006) established the CRFC in order to create uniformity between California's retail food safety laws and those of other states, as well as to enhance food safety laws based on the best available science.

AB 224 (Gordon, Chapter 404, Statutes of 2013) defined CSA within the direct marketing program regulated by the CDFA, established regulatory parameters, and required CSA registration fees to fund administration and related programmatic costs, as specified.

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.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 9/4/15)

California Association of Environmental Health Administrators (source)

Community Alliance with Family Farmers

Health Trust

Roots of Change

Sustainable Economies Law Center

OPPOSITION: (Verified 9/4/15)

Association of California Egg Farmers

ARGUMENTS IN SUPPORT: This bill is sponsored by the California Association of Environmental Health Administrators (CAEHA), which states that the local agricultural movement is experiencing burgeoning popularity, and California has become a trailblazer in the progressive food and farm movement. Additionally, there has been a dramatic growth in a wide range of community and urban gardens, as one form of locally produced food. CAEHA states that lack of regulatory certainty has thwarted the legitimate expansion of some of these operations, and the absence of clear food production and safety guidance for these micro-farms may be endangering public health. CAEHA states that AB 1990 from last year reduced demands on local governments to adopt a patchwork quilt of individual local ordinances, and provided a statewide set of best management practices consistent with recently enacted cottage food law and community supported agriculture laws. CAEHA states that to remedy the concern expressed in Governor Brown’s signing statement of AB 1990 that it might inadvertently limit the existing paths for producers and gleaners to sell locally, this bill was introduced to explicitly allow produce to be sold at all retail food facilities by striking the word “restaurant” and replacing it with “food facility.”

Roots of Changes states in support that enabling more avenues for direct sales by community members is sound public policy given that almost a quarter of Californians are still below the federal poverty level, and research consistently shows that low-income people are more likely to be overweight and obese. The California Alliance with Family Farmers states that this bill extends the right to sell whole produce and shell eggs to any food facility, not just restaurants, which will allow urban gardens to sell produce and shell eggs to stores.

ARGUMENTS IN OPPOSITION: This bill is opposed by the Association of California Egg Farmers (ACEF) unless amended to remove all references to “unrefrigerated shell eggs.” ACEF states that 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 California. ACEF states that when egg farmers want to sell their products to restaurants and stores, meeting the basic food safety standards is paramount. ACEF states that this bill provides an exemption based on where eggs are farmed, not how or by meeting specific standards, and that it must oppose this bill unless eggs are removed from the bill.

ASSEMBLY FLOOR: 62-10, 5/11/15

AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Perea, Rendon, Rodriguez, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Weber, Wilk, Williams, Wood

NOES: Travis Allen, Brough, Chávez, Gray, Grove, Harper, Mathis, Melendez, Olsen, Salas

NO VOTE RECORDED: Bigelow, Beth Gaines, Jones, Quirk, Ridley-Thomas, Wagner, Waldron, Atkins

Prepared by: Vince Marchand / HEALTH /

9/8/15 17:24:39

**** END ****

 THIRD READING 

Bill No: AB 234

Author: Gordon (D)

Amended: 6/9/15 in Senate

Vote: 21

SENATE HEALTH COMMITTEE: 8-0, 6/24/15

AYES: Hernandez, Nguyen, Mitchell, Monning, Nielsen, Pan, Roth, Wolk

NO VOTE RECORDED: Hall

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 62-10, 5/11/15 - See last page for vote

SUBJECT: Food: sale

SOURCE: California Association of Environmental Health Administrators

DIGEST: This bill revises provisions of law governing community food producers or gleaners by allowing them to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to a permitted food facility, not just a restaurant, and limits the ability of a local environmental health officer to require community food producers or gleaners to register with the local enforcement entity only if the food producers or gleaners do not meet certain conditions.

ANALYSIS:

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.

2. 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.

3. 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.

4. Defines “gleaner” 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.

5. Permits a community food producer or a gleaner, 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 (up to 15 dozen per month), 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:

1. 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;

2. Requires agricultural products to be labeled with the name and address of the community food producer;

3. 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; and,

4. 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.

6. 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 producer.

This bill:

1. Clarifies and expands the ability of a community food producer or gleaner to sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, by allowing them to sell to any food facility, and not just a restaurant, in addition to direct sales to the public and to a cottage food operation.

2. Eliminates the ability of a local jurisdiction to adopt an ordinance prohibiting a community food producer or gleaner from selling or providing whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public or to food facilities.

3. Restricts the ability of a local health enforcement agency to require a community food producer or gleaner to be registered with the local enforcement agency, unless otherwise authorized by a locally adopted ordinance, so that registration can only be required by the local enforcement agency if the community food producer or gleaner does not meet any of the following conditions:

1. Produce is sold on the premises controlled by the community food producer;

2. Produce is donated to a food bank or food kitchen that is registered or permitted by a federal, state, or local health agency; or

3. Produce is sold in a food facility permitted by a federal, state, or local health agency.

Comments

1. Author’s statement. According to the author, this bill is needed because even though the Governor signed AB 1990 (Gordon, Chapter 580, Statutes of 2014) to allow community food producers or gleaners to engage in direct sales of produce to the public, there were concerns that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. Therefore, this bill clarifies and expands on AB 1990 by providing explicit clarification as to what entities community food producers are allowed to sell or provide whole uncut fruit, vegetables or unrefrigerated shell eggs.

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 community-supported agriculture (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 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. Concern from community gleaning programs. Following the passage of AB 1990 last year, there has been concern expressed by community gleaning programs on the impact of this new law on programs that collect fresh produce and donate to charitable organizations. These concerns were detailed in a white paper prepared by Petaluma Bounty, which describes itself as a community-based nonprofit that is helping people to grow their own healthy food, redistributing surplus food, and providing affordable fresh food to low-income families and seniors. According to Petaluma Bounty, decentralized gleaning and food recovery efforts exist because they supplement emergency food systems by collecting and distributing small amounts of locally grown, highly perishable produce that is impractical and inefficient for food banks to consider. While the law permits gleaners to provide fruits and vegetables directly to the public or to food facilities, it does require this produce to come from approved sources, and to be labeled with the name and address of the community food producer. It is these requirements that are of concern to Petaluma Bounty – the requirement for traceability, and that the food come from an approved source, which means that it was grown or produced in compliance with all applicable federal, state, or local laws, regulations, and food safety guidelines issued by a regulatory agency. Petaluma Bounty states that these requirements do not work well for community gleaning efforts because of the small amounts of non-uniform batches of produce trickling in from across the community, multiple growers using a wide array of growing practices, volunteer workforces, and suppliers/donors motivated by a moral imperative and goodwill. While acknowledging that the goal of these requirements is safe food, Petaluma Bounty questions whether there are other ways to promote safe food that won’t negatively impact the volunteer gleaning movement and potentially undermine legal protections provided by the Good Samaritan Food Donation Act.
   
   It is important to note that the concerns expressed by Petaluma Bounty are primarily directed at last year’s AB 1990, which this bill is amending. Recent amendments to this bill included an effort to ease donation to food banks by ensuring that gleaners and community food producers who donate to food banks would not have to register with a local enforcement agency; however, these amendments did not remove the requirement that the produce meet “approved source” requirements, or remove the requirement for traceability.

4. Federal Good Samaritan Food Donation Act. In response to the concerns of community gleaners such as Petaluma Bounty, the California Association of Environmental Health Administrators, which is sponsoring this bill, has pointed to the federal Good Samaritan Food Donation Act (Act) as providing some protection to community gleaning operations. This Act states that a “ person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals.” The Act specifies that this protection does not apply to an injury or death that resulted from gross negligence or intentional misconduct on the part of the gleaner. However, the act also contains a provision that specifies that it does not supercede state or local health regulations. It is unclear whether gleaners who fail to adhere to California’s law, such as the requirement that gleaners only provide food from approved sources, would still be protected under the Act.

Related Legislation

AB 226 (Atkins, 2015) establishes “fishermen’s markets” as a new category of food facility that would sell only raw fresh or fresh-frozen fish or raw edible aquatic plants, caught or harvested by California-licensed fishermen or California-registered aquaculturists, and establishes requirements for fishermen’s markets. AB 226 is set for hearing on July 13, 2015, in the Senate Appropriations Committee.

AB 143 (Wood, 2015) extends an exemption from food facility regulation, that currently exists for breweries, to enable wineries to offer prepackaged non-potentially hazardous food. AB 143 is currently in Engrossing and Enrolling.

Prior Legislation

AB 1990 (Gordon, Chapter 580, Statutes of 2014), permitted a “community food producer,” defined as a producer of agricultural products on land that is not zoned for agricultural use, and “gleaners,” as defined, to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, including restaurants, if the community food producer or gleaner follows certain requirements. The Governor issued the following statement when signing this bill into law: “I am signing Assembly Bill 1990 which allows gleaners and community food producers to engage in direct sales of produce to the public. There is some concern that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. This is not my intent. The language in this bill is clearly expansive, not restrictive.

AB 2539 (Ting, Chapter 907, Statutes of 2014) made various changes to the rules governing certified farmers’ markets, including requiring all harvested, cut, wrapped, or otherwise processed meat, poultry, and fish products offered for sale in a farmers’ market to be from approved sources and to be maintained at 41 degrees Fahrenheit.

SB 144 (Runner, Chapter 23, Statutes of 2006) established the CRFC in order to create uniformity between California's retail food safety laws and those of other states, as well as to enhance food safety laws based on the best available science.

AB 224 (Gordon, Chapter 404, Statutes of 2013) defined CSA within the direct marketing program regulated by the CDFA, established regulatory parameters, and required CSA registration fees to fund administration and related programmatic costs, as specified.

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.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 7/6/15)

California Association of Environmental Health Administrators (source)

Community Alliance with Family Farmers

Roots of Change

OPPOSITION: (Verified 7/6/15)

Association of California Egg Farmers

ARGUMENTS IN SUPPORT: This bill is sponsored by the California Association of Environmental Health Administrators (CAEHA), which states that the local agricultural movement is experiencing burgeoning popularity, and California has become a trailblazer in the progressive food and farm movement. Additionally, there has been a dramatic growth in a wide range of community and urban gardens, as one form of locally produced food. CAEHA states that lack of regulatory certainty has thwarted the legitimate expansion of some of these operations, and the absence of clear food production and safety guidance for these micro-farms may be endangering public health. CAEHA states that AB 1990 from last year reduced demands on local governments to adopt a patchwork quilt of individual local ordinances, and provided a statewide set of best management practices consistent with recently enacted cottage food law and community supported agriculture laws. CAEHA states that to remedy the concern expressed in Governor Brown’s signing statement of AB 1990 that it might inadvertently limit the existing paths for producers and gleaners to sell locally, this bill was introduced to explicitly allow produce to be sold at all retail food facilities by striking the word “restaurant” and replacing it with “food facility.”

Roots of Changes states in support that enabling more avenues for direct sales by community members is sound public policy given that almost a quarter of Californians are still below the federal poverty level, and research consistently shows that low-income people are more likely to be overweight and obese. The California Alliance with Family Farmers states that this bill extends the right to sell whole produce and shell eggs to any food facility, not just restaurants, which will allow urban gardens to sell produce and shell eggs to stores.

ARGUMENTS IN OPPOSITION: This bill is opposed by the Association of California Egg Farmers (ACEF) unless amended to remove all references to “unrefrigerated shell eggs.” ACEF states that 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 California. ACEF states that when egg farmers want to sell their products to restaurants and stores, meeting the basic food safety standards is paramount. ACEF states that this bill provides an exemption based on where eggs are farmed, not how or by meeting specific standards, and that it must oppose this bill unless eggs are removed from the bill.

ASSEMBLY FLOOR: 62-10, 5/11/15

AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Perea, Rendon, Rodriguez, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Weber, Wilk, Williams, Wood

NOES: Travis Allen, Brough, Chávez, Gray, Grove, Harper, Mathis, Melendez, Olsen, Salas

NO VOTE RECORDED: Bigelow, Beth Gaines, Jones, Quirk, Ridley-Thomas, Wagner, Waldron, Atkins

Prepared by: Vince Marchand / HEALTH /

8/20/15 14:03:28

**** END ****

SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: AB 234

SUBJECT: Food: sale

SUMMARY:

Revises provisions of law governing community food producers or gleaners by allowing them to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to a permitted food facility, not just a restaurant, and limits the ability of a local environmental health officer to require community food producers or gleaners to register with the local enforcement entity only if the food producers or gleaners do not meet certain conditions.

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.

2. 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.

3. 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.

4. Defines “gleaner” 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.

5. Permits a community food producer or a gleaner, 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 (up to 15 dozen per month), 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:

1. 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;

2. Requires agricultural products to be labeled with the name and address of the community food producer;

3. 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; and,

4. 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.

6. 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 producer.

This bill:

1. Clarifies and expands the ability of a community food producer or gleaner to sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, by allowing them to sell to any food facility, and not just a restaurant, in addition to direct sales to the public and to a cottage food operation.

2. Eliminates the ability of a local jurisdiction to adopt an ordinance prohibiting a community food producer or gleaner from selling or providing whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public or to food facilities.

3. Restricts the ability of a local health enforcement agency to require a community food producer or gleaner to be registered with the local enforcement agency, unless otherwise authorized by a locally adopted ordinance, so that registration can only be required by the local enforcement agency if the community food producer or gleaner does not meet any of the following conditions:

1. Produce is sold on the premises controlled by the community food producer;

2. Produce is donated to a food bank or food kitchen that is registered or permitted by a federal, state, or local health agency; or

3. Produce is sold in a food facility permitted by a federal, state, or local health agency.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, this bill would result in negligible state costs. The cost impact on local environmental health departments who enforce food safety standards in their jurisdictions should also be negligible, as this expansion of the types of facilities a community food producer or gleaner can sell to is not expected to materially impact local food safety regulatory activities. Current law provides for full cost recovery if local environmental health departments are required to intervene based on public complaint or food illness recalls.

PRIOR VOTES:

COMMENTS:

1. Author’s statement. According to the author, this bill is needed because even though the Governor signed AB 1990 (Gordon, Chapter 580, Statutes of 2014) to allow community food producers or gleaners to engage in direct sales of produce to the public, there were concerns that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. Therefore, this bill clarifies and expands on AB 1990 by providing explicit clarification as to what entities community food producers are allowed to sell or provide whole uncut fruit, vegetables or unrefrigerated shell eggs.

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 community-supported agriculture (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 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. Concern from community gleaning programs. Following the passage of AB 1990 last year, there has been concern expressed by community gleaning programs on the impact of this new law on programs that collect fresh produce and donate to charitable organizations. These concerns were detailed in a white paper prepared by Petaluma Bounty, which describes itself as a community-based nonprofit that is helping people to grow their own healthy food, redistributing surplus food, and providing affordable fresh food to low-income families and seniors. According to Petaluma Bounty, decentralized gleaning and food recovery efforts exist because they supplement emergency food systems by collecting and distributing small amounts of locally grown, highly perishable produce that is impractical and inefficient for food banks to consider. While the law permits gleaners to provide fruits and vegetables directly to the public or to food facilities, it does require this produce to come from approved sources, and to be labeled with the name and address of the community food producer. It is these requirements that are of concern to Petaluma Bounty – the requirement for traceability, and that the food come from an approved source, which means that it was grown or produced in compliance with all applicable federal, state, or local laws, regulations, and food safety guidelines issued by a regulatory agency. Petaluma Bounty states that these requirements do not work well for community gleaning efforts because of the small amounts of non-uniform batches of produce trickling in from across the community, multiple growers using a wide array of growing practices, volunteer workforces, and suppliers/donors motivated by a moral imperative and goodwill. While acknowledging that the goal of these requirements is safe food, Petaluma Bounty questions whether there are other ways to promote safe food that won’t negatively impact the volunteer gleaning movement and potentially undermine legal protections provided by the Good Samaritan Food Donation Act.
   
   It is important to note that the concerns expressed by Petaluma Bounty are primarily directed at last year’s AB 1990, which this bill is amending. Recent amendments to this bill included an effort to ease donation to food banks by ensuring that gleaners and community food producers who donate to food banks would not have to register with a local enforcement agency; however, these amendments did not remove the requirement that the produce meet “approved source” requirements, or remove the requirement for traceability.

4. Federal Good Samaritan Food Donation Act. In response to the concerns of community gleaners such as Petaluma Bounty, the California Association of Environmental Health Administrators, which is sponsoring this bill, has pointed to the federal Good Samaritan Food Donation Act (Act) as providing some protection to community gleaning operations. This Act states that a “ person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals.” The Act specifies that this protection does not apply to an injury or death that resulted from gross negligence or intentional misconduct on the part of the gleaner. However, the act also contains a provision that specifies that it does not supercede state or local health regulations. It is unclear whether gleaners who fail to adhere to California’s law, such as the requirement that gleaners only provide food from approved sources, would still be protected under the Act.

5. Related legislation. AB 226 (Atkins) would establish “fishermen’s markets” as a new category of food facility that would sell only raw fresh or fresh-frozen fish or raw edible aquatic plants, caught or harvested by California-licensed fishermen or California-registered aquaculturists, and establishes requirements for fishermen’s markets. AB 226 is also set for hearing on June 24, 2015, in this committee.

AB 143 (Wood) would extend an exemption from food facility regulation, that currently exists for breweries, to enable wineries to offer prepackaged non-potentially hazardous food. AB 143 passed the Senate Health Committee by a vote of 6-3 on June 10, 2015.

6. Prior legislation. AB 1990 (Gordon, Chapter 580, Statutes of 2014), permitted a “community food producer,” defined as a producer of agricultural products on land that is not zoned for agricultural use, and “gleaners,” as defined, to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, including restaurants, if the community food producer or gleaner follows certain requirements. The Governor issued the following statement when signing this bill into law: “I am signing Assembly Bill 1990 which allows gleaners and community food producers to engage in direct sales of produce to the public. There is some concern that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. This is not my intent. The language in this bill is clearly expansive, not restrictive.

AB 2539 (Ting, Chapter 907, Statutes of 2014), made various changes to the rules governing certified farmers’ markets, including requiring all harvested, cut, wrapped, or otherwise processed meat, poultry, and fish products offered for sale in a farmers’ market to be from approved sources and to be maintained at 41 degrees Fahrenheit.

SB 144 (Runner, Chapter 23, Statutes of 2006), established the CRFC in order to create uniformity between California's retail food safety laws and those of other states, as well as to enhance food safety laws based on the best available science.

AB 224 (Gordon, Chapter 404, Statutes of 2013), defined CSA within the direct marketing program regulated by the CDFA, established regulatory parameters, and required CSA registration fees to fund administration and related programmatic costs, as specified.

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.

7. Support. This bill is sponsored by the California Association of Environmental Health Administrators (CAEHA), which states that the local agricultural movement is experiencing burgeoning popularity, and California has become a trailblazer in the progressive food and farm movement. Additionally, there has been a dramatic growth in a wide range of community and urban gardens, as one form of locally produced food. CAEHA states that lack of regulatory certainty has thwarted the legitimate expansion of some of these operations, and the absence of clear food production and safety guidance for these micro-farms may be endangering public health. CAEHA states that AB 1990 from last year reduced demands on local governments to adopt a patchwork quilt of individual local ordinances, and provided a statewide set of best management practices consistent with recently enacted cottage food law and community supported agriculture laws. CAEHA states that to remedy the concern expressed in Governor Brown’s signing statement of AB 1990 that it might inadvertently limit the existing paths for producers and gleaners to sell locally, this bill was introduced to explicitly allow produce to be sold at all retail food facilities by striking the word “restaurant” and replacing it with “food facility.”
   
   Roots of Changes states in support that enabling more avenues for direct sales by community members is sound public policy given that almost a quarter of Californians are still below the federal poverty level, and research consistently shows that low-income people are more likely to be overweight and obese. The California Alliance with Family Farmers states that this bill extends the right to sell whole produce and shell eggs to any food facility, not just restaurants, which will allow urban gardens to sell produce and shell eggs to stores.

8. Oppose unless amended. This bill is opposed by the Association of California Egg Farmers (ACEF) unless amended to remove all references to “unrefrigerated shell eggs.” ACEF states that 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 California. ACEF states that when egg farmers want to sell their products to restaurants and stores, meeting the basic food safety standards is paramount. ACEF states that this bill provides an exemption based on where eggs are farmed, not how or by meeting specific standards, and that it must oppose this bill unless eggs are removed from the bill.

SUPPORT AND OPPOSITION:

Support: California Association of Environmental Health Administrators (sponsor)

Community Alliance with Family Farmers

Roots of Change

Oppose: Association of California Egg Farmers (unless amended)

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 234

Author:(Gordon)

As Introduced Ver:February 4, 2015

Majority vote

SUMMARY: Expands from "restaurant" to the more general "food facility" the type of facility to which a community food producer (CFP) or gleaner can sell fruits, vegetables, or eggs. Specifically, this bill permits a CFP 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 any licensed food facility, or to a cottage food operation if the CFP meets specific requirements, in addition to any requirements imposed by a locally adopted ordinance.

FISCAL EFFECT: According to the Assembly Appropriations Committee, negligible state costs.

COMMENTS: According to the author, the local 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 community and urban gardens, as well as locally produced food, throughout the past decade. These small production sites include personal gardens, culinary gardens, community gardens, and school gardens. This bill expands on efforts in recent years to allow gleaners and CFPs to engage in direct sales of produce to the public. The author states that this bill is responsive to the Governor's veto message. By striking the word "restaurant" and replacing it with "food facility," this bill ensures explicit clarification as to what entities CFPs are allowed to sell or provide whole uncut fruit, vegetables, or unrefrigerated shell eggs to.

Last year, AB 1990 (Gordon), Chapter 580, Statutes of 2014, defines CFPs and gleaners, and allows CFPs or gleaners to sell or provide whole uncut fruits or vegetables or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or to a cottage food operation, if the CFP complies with a variety of health and safety requirements or Best Management Practices established by CDFA and posted on their Web site.

Upon signing AB 1990 in September 2014, Governor Brown issued the following signing statement: "There is some concern that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. This is not my intent. The language in this bill is clearly expansive, not restrictive."

This bill would allow a CFP to sell their product directly to any type of food facility, instead of just restaurants. This would include public and private school cafeterias, some licensed health care facilities, commissaries, mobile food facilities, mobile support units, and temporary food facilities.

The California Association of Environmental Health Administrators, sponsor of the bill, supports this work as a continued effort to facilitate access to healthy foods like fresh fruit and vegetables for all Californians. They state that in 2012, Community Supported Agriculture (CSA) legislation AB 224 (Gordon) Chapter 404, Statutes of 2013, provided the platform to clarify the regulation of “community gardens and community supported agriculture” from a food safety perspective. Then, the statewide approach in AB 1990 promoted safe community food while recognizing local land use and zoning authority. By adhering to local land use zoning requirements, it reduced demands on local governments to adopt a patchwork quilt of individual local ordinances. It provided a statewide set of best management practices consistent with recently enacted cottage food law, AB 1616 (Gatto), Chapter 415, Statutes of 2012 and CSA laws. To remedy this limitation, this bill will explicitly allow all community food produced in compliance with these best management practices to be sold at all retail food facilities by striking the word "restaurant" and replacing it with "food facility."

The Association of California Egg Farmers oppose this bill, unless all reference to "unrefrigerated shell eggs" is removed from the bill. They believe that this bill does not adequately ensure that food safety standards are met for eggs. They argue that under this bill, eggs contaminated with Salmonella could easily make hundreds, maybe thousands, of Californians sick in just one week.

Analysis Prepared by: Dharia McGrew / HEALTH / (916) 319-2097 FN: 0000159

Date of Hearing: April 15, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 234

Author:(Gordon) – As Introduced Ver:February 4, 2015

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill expands from "restaurant" to the more general "food facility" the type of facility to which a community food producer (CFP) or gleaner can sell fruits, vegetables, or eggs.

FISCAL EFFECT:

Negligible state costs.

The cost impact on local Environmental Health (EH) departments who enforce food safety standards in their jurisdictions should also be negligible, as this expansion of the types of facilities a CFP or gleaner can sell to is not expected to materially impact local food safety regulatory activities. Current law provides for full cost recovery if local EH departments are required to intervene based on public complaint or food illness recalls.

COMMENTS:

1. Purpose. According to the author, California has become a trailblazer in progressive food and farm legislation. This bill expands on efforts in recent years to allow gleaners and CFPs to engage in direct sales of produce to the public. By striking the word “restaurant” and replacing it with “food facility," this bill ensures explicit clarification as to what entities CFPs are allowed to sell or provide whole uncut fruit, vegetables or unrefrigerated shell eggs to.

2. Background. Last year, AB 1990 (Gordon), Chapter 580, Statutes of 2014, defined “CFPs” and “gleaners,” and allows CFPs or gleaners to sell or provide whole uncut fruits, vegetables, or unrefrigerated shell eggs directly to the public, to a permitted restaurant, or to a cottage food operation, if the CFP complies with a specified requirements.

3. Permits, registration, and inspections are not required. However, local jurisdictions are authorized to register these operations if they deem it necessary, and to recover such costs through fees. Governor Brown issued the following signing statement when approving the bill: “There is some concern that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. This is not my intent. The language in this bill is clearly expansive, not restrictive.” This bill responds to the signing statement by clarifying CFPs or gleaners may sell to all food facilities.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 7, 2015

ASSEMBLY COMMITTEE ON HEALTH

Bonta, Chair

ABPCA Bill Id:AB 234

Author:(Gordon) – As Introduced Ver:February 4, 2015

SUBJECT:

Food: sale.

SUMMARY:

Expands the type of food facility that a “community food producer” (CFP) may sell fruits, vegetables, or eggs to. Specifically, this bill permits a CFP 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 any licensed food facility, or to a cottage food operation if the CFP meets specific requirements, in addition to any requirements imposed by a locally adopted ordinance.

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.
   
   
   

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. 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.
   
   
   

5. Permits a CFP, 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, to permitted restaurants, or to a cottage food operation if the CFP follows certain requirements.
   
   
   

6. 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.
   
   
   

7. Requires the Department of Food and Agriculture (CDFA), in consultation with the Department of Public Health and local health officers or designees, to publish and post on DFA’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.

FISCAL EFFECT: This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, the local 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 community and urban gardens, as well as locally produced food, throughout the past decade. These small production sites include personal gardens, culinary gardens, community gardens, and school gardens. This bill expands on efforts in recent years to allow gleaners and CFPs to engage in direct sales of produce to the public. The author states that this bill is responsive to the Governor's veto message. By striking the word “restaurant” and replacing it with “food facility," this bill ensures explicit clarification as to what entities CFPs are allowed to sell or provide whole uncut fruit, vegetables or unrefrigerated shell eggs to.
   
   

2. BACKGROUND. Last year, AB 1990 (Gordon), Chapter 580, Statutes of 2014, defines “CFPs” and “gleaners,” and allows CFPs or gleaners to sell or provide whole uncut fruits or vegetables or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or to a cottage food operation, if the CFP complies with a variety of health and safety requirements or Best Management Practices established by CDFA and posted on their Website.

Upon signing AB 1990 in September 2014, Governor Brown issued the following signing statement: “There is some concern that AB 1990 would inadvertently limit the existing paths for producers and gleaners to sell locally. This is not my intent. The language in this bill is clearly expansive, not restrictive.”

This bill would allow a CFP to sell their product directly to any type of food facility, instead of just restaurants. This would include public and private school cafeterias, some licensed health care facilities, commissaries, mobile food facilities, mobile support units, and temporary food facilities.

3. SUPPORT. The California Association of Environmental Health Administrators, sponsor of the bill, supports this work as a continued effort to facilitate access to healthy foods like fresh fruit and vegetables for all Californians. They state that in 2012, Community Supported Agriculture (CSA) legislation AB 224 (Gordon) Chapter 404, Statutes of 2013, provided the platform to clarify the regulation of “community gardens and community supported agriculture” from a food safety perspective. Then, the statewide approach in AB 1990 promoted safe community food while recognizing local land use and zoning authority. By adhering to local land use zoning requirements, it reduced demands on local governments to adopt a patchwork quilt of individual local ordinances. It provided a statewide set of best management practices consistent with recently enacted cottage food law, AB 1616 (Gatto), and CSA laws. To remedy this limitation, this bill will explicitly allow all community food produced in compliance with these best management practices to be sold at all retail food facilities by striking the word “restaurant” and replacing it with “food facility”.
   
   

4. RELATED LEGISLATION.
   
   

   1. AB 143 (Wood) expands an exemption in the CRFC allowing wine tasting rooms that currently only serve crackers to also serve pretzels or prepackaged non-potentially hazardous foods. AB 143 is pending in Assembly Health Committee.
      
      

   2. AB 226 (Atkins) creates and defines a Fishermen's Market as a type of nonpermanent food facility. AB 226 is pending in Assembly Health Committee.
      
      

   3. AB 724 (Dodd) revises the definition of community event to include a district fair, and would require a temporary food facility to be granted a permit to operate at a community event if the enforcement agency makes a determination that the temporary food facility meets specified requirements, and requires the permit to be issued for the entire duration of the community event. AB 724 is pending in Assembly Health Committee.
      
      
      

   4. AB 1076 (Mayes) exempts from the definition of a food facility, a snack bar operated by a charitable nonprofit organization and authorizes snack bars to undertake limited food preparation, as defined. AB 1076 is pending in Assembly Health Committee.
      
      
      

   5. SB 746 (Wolk) exempts, beginning January 1, 2018, grain milled and sold at the Bale Grist Mill State Historic Park from registration and other requirements applicable to retail food facilities if certain conditions are met. SB 746 is pending in Senate Natural Resources and Water Committee.

5. PREVIOUS LEGISLATION.
   
   

   1. AB 1990 permits a CFP, defines 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 CFP follows certain requirements.
      
      

   2. AB 224 creates definitions dealing with requirements for CSAs; and, authorizes the CDFA to establish fees, not to exceed $100, to administer this new program as specified.
      
      

   3. AB 1616 (Gatto), Chapter 415, Statutes of 2012, provides a regulatory framework for the production in home kitchens of food for sale, referred to as cottage food operations.
      
      

   4. AB 2168 (Jones), Chapter 447, Statutes of 2008, expands the definition of direct marketing to include farm stands, field retail stands, and other forms of direct marketing, revises related definitions, and authorizes CDFA to adopt regulations to regulate direct marketing, as specified.
      
      

   5. AB 593 (Strom-Martin), Chapter 833, Statutes of 1999, codifies regulations exempting direct marketers from specified packing and labeling standards, amends fee structures, and authorizes farmers’ markets to establish rules and procedures.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Environmental Health Administrators (sponsor)

Community Alliance with Family Farmers
Roots of Change

Opposition

None on file.

Analysis Prepared by:

Dharia McGrew / HEALTH / (916) 319-2097