(1)Existing federal law, the Federal Food, Drug, and Cosmetic Act, regulates, among other things, the quality and packaging of foods introduced or delivered for introduction into interstate commerce and generally prohibits the misbranding of food. Existing federal law, the Nutrition Labeling and Education Act of 1990, governs state and local labeling requirements, including those that characterize the relationship of any nutrient specified in the labeling of food to a disease or health-related condition. Existing state law, the Sherman Food, Drug, and Cosmetic Law, generally regulates misbranded food and provides that any food is misbranded if its labeling does not conform with the requirements for nutrient content or health claims as set forth in the Federal Food, Drug, and Cosmetic Act and the regulations adopted pursuant to that federal act. Existing law requires that a food facility, as defined, make prescribed disclosures and warnings to consumers, as specified. A violation of these provisions is a crime.

Existing state law, the Pupil Nutrition, Health, and Achievement Act of 2001, also requires the sale of only certain beverages to pupils at schools. The beverages that may be sold include fruit-based and vegetable-based drinks, drinking water with no added sweetener, milk, and in middle and high schools, an electrolyte replacement beverage if those beverages meet certain nutritional requirements.

This bill would establish the Sugar-Sweetened Beverages Health Warning Act, which would prohibit a person from distributing, selling, or offering for sale a sugar-sweetened beverage in a sealed beverage container, or a multipack of sugar-sweetened beverages, in this state unless the beverage container or multipack bears a health warning, as prescribed. The bill also would require every person who owns, leases, or otherwise legally controls the premises where a vending machine or beverage dispensing machine is located, or where a sugar-sweetened beverage is sold in an unsealed container, to place a specified safety warning in certain locations, including on the exterior of any vending machine that includes a sugar-sweetened beverage for sale.

(2)Under existing law, the State Department of Public Health, upon the request of a health officer, as defined, may authorize the local health department of a city, county, city and county, or local health district to enforce the provisions of the Sherman Food, Drug, and Cosmetic Law. Existing law authorizes the State Department of Public Health to assess a civil penalty against any person in an amount not to exceed $1,000 per day, except as specified. Existing law authorizes the Attorney General or any district attorney, on behalf of the State Department of Public Health, to bring an action in a superior court to grant a temporary or permanent injunction restraining a person from violating any provision of the Sherman Food, Drug, and Cosmetic Law.

This bill, commencing July 1, 2018, would provide that any violation of the provisions described in (1) above, or regulations adopted pursuant to those provisions, is punishable by a civil penalty of not less than $50, but no greater than $500.

This bill would also create the Sugar-Sweetened Beverages Safety Warning Fund for the receipt of all moneys collected for violations of those provisions. The bill would allocate moneys in this fund, upon appropriation by the Legislature, to the department for the purpose of enforcing those provisions.

The bill would make legislative findings and declarations relating to the consumption of sugar-sweetened beverages, obesity, and dental disease.

SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: SB 300

SUBJECT: Sugar-sweetened beverages: health warnings

SUMMARY:

Establishes the Sugar-Sweetened Beverages Health Warning Act, to be administered by the Department of Public Health, and requires a safety warning on all sealed sugar-sweetened beverage containers, as specified. Requires the warning label to be posted in a place that is easily visible at the point-of-purchase of an establishment where a beverage container is not filled by the consumer.

Existing law:

1. Establishes the Department of Public Health (DPH) to protect and improve the health of communities through education, promotion of healthy lifestyles, and research for disease and injury prevention.
2. Establishes the Sherman Food, Drug, and Cosmetic Law (Sherman Act), which is administered by DPH, to regulate the contents, packaging, labeling, and advertising of food, drugs, and cosmetics in California.
3. Allows DPH, upon the request of a health officer, to authorize the local health department of a city, county, city and county, or local health district to enforce the provisions of the Sherman Act and its regulations that pertain to retail food establishments, as defined, if DPH determines that the local health department has sufficient personnel with adequate training to do so, and requires that the enforcement be limited to the area under the jurisdiction of the local health department.

This bill:

1. Establishes the Sugar-Sweetened Beverages Health Warning Act (SSBHWA) whereby a person, as specified, is prohibited from distributing, selling, or offering for sale in this state a sugar-sweetened beverage (SSB) in a sealed beverage container; in a multipack of sealed beverage containers; in concentrate form, as defined; on the premises where a vending machine or beverage dispensing machine, as defined, is located; and where SSBs are sold in unsealed beverage containers, unless the container bears a safety warning, as specified, or the safety warning is posted on the premises, as specified.
2. Defines “sugar-sweetened beverage” as any sweetened non-alcoholic beverage, carbonated or non-carbonated, intended for human consumption that has added caloric sweeteners and contains 75 calories or more per 12 fluid ounces. Specifies that SSBs do not include any beverage containing 100% natural fruit juice or natural vegetable juice with no added caloric sweeteners; any product commonly referred to as a dietary aid; any product for consumption by infants and that is commonly referred to as infant formula; or any beverage whose principal ingredient by weight is animal milk or a milk substitute. Defines “animal milk” as natural liquid milk secreted by an animal and consumed by humans, including natural milk concentrate and dehydrated natural milk, whether or not reconstituted. Defines “milk substitute” as a plant-based beverage in which principal ingredients by weight are (1) water and (2) grains, nuts, legumes, or seeds, including, without limitation, almond, coconut, flax, hazelnut, oat, rice, and soy milks.
3. Defines “non-alcoholic beverage” as any beverage that contains less than one-half of 1% alcohol per volume. Defines “caloric sweetener” as any substance containing calories suitable for human consumption that humans perceive as sweet and includes, without limitation, sucrose, fructose, glucose, and other sugars and fruit juice concentrates. Defines “caloric” as a substance that adds calories to the diet of a person who consumes that substance.
4. Requires the safety warning to read “STATE OF CALIFORIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, type 2 diabetes, and tooth decay” on the front of SSB sealed beverage containers, separate and apart from all other information, on a contrasting background, and in bold type; to be affixed to an SSB beverage container in a manner that it cannot be removed without thorough application of water or other solvents if the warning is not printed directly on a sealed container; to be printed on at least two sides of an SSB multipack and on each individual sealed container inside the multipack; and to be printed conspicuously on the front of the packaging of a concentrate.
5. Requires every person who owns, leases, or otherwise legally controls the premises where a vending machine or beverage dispensing machine is located, or where SSBs are sold in an unsealed container, to place, or cause to be placed, a safety warning a) on the exterior of any vending machine that includes SSBs, b) on the exterior of any self-serve beverage dispensing machine, and, c) at the point-of-purchase where any consumer purchases an SSB in an unsealed beverage container when the container is filled by an employee of a food establishment rather than by the consumer.
6. Allows DPH to assess a civil penalty of not less than $50 but no greater than $500 for any violation of the SSBHWA or any regulation by DPH. Specifies that a person is not to be found in violation of the SSBHWA more than once during any one inspection visit.
7. Creates in the State Treasury the Sugar-Sweetened Beverages Safety Warning Fund consisting of moneys collected for the violation of the SSBHWA, which is to be appropriated by the Legislature for allocation to DPH for the purpose of enforcing the SSBHWA.
8. Requires DPH to adopt regulations to implement the SSBHWA. Allows the department to adopt regulations to develop new language for the safety warning, as specified, after appropriate investigation and consultation with the state health officer.
9. Makes findings and declarations about obesity and type 2 diabetes rates and resulting health costs in the state, as well as the link between SSB consumption and obesity and dental caries, and the increased risk of developing type 2 diabetes by consuming one or two sodas per day.
10. Prohibits the provisions in the SSBHWA from preempting or prohibiting the adoption and implementation of local ordinances related to SSBs, except in cases where local ordinances are inconsistent with the SSBHWA.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, California is in the midst of an ever-growing obesity and diabetes epidemic. The science is clear and conclusive that SSBs are a driving force behind this public health crisis. Overwhelming research has unequivocally shown that sugary drinks are major contributors to obesity, diabetes, and tooth decay, which cost California billions of dollars in health care and lost productivity annually. SB 300 will require warning labels on SSBs—similar to those on tobacco and alcohol—that explain the proven health risks associated with these drinks and allow consumers to make informed choices. SSBs are the biggest contributor of added calories in the American diet and are unique in that they do not provide any nutritional value. Individuals who drink one or two SSBs per day have a 26% higher risk for developing type 2 diabetes, and if current trends are not reversed, it is predicted that one in three children—and nearly half of Latino and African-American children—born in the year 2000 will develop type 2 diabetes in their lifetime. The costs associated with habitual consumption of SSBs will burden the state and all taxpayers. Diabetes adds an extra $1.6 billion per year to California’s hospitalization costs, including $254 million in Medi-Cal costs. SB 300 is essential in reversing this public health crisis by ensuring that consumers have the information they need to make informed decisions about what they choose to drink.
2. Obesity and other chronic diseases. DPH issued a study, The Burden of Chronic Disease and Injury, in 2013 that highlights some of the leading causes of death, such as heart disease, cancer, stroke, and respiratory disease, all of which have a strong connection to obesity. Diabetes is another serious chronic disease stemming from obesity that adversely affects quality of life and results in serious medical costs. The last decade has witnessed a 32% rise in diabetes prevalence, affecting some 3.9 million people and costing upwards of $24 billion per year. According to the Centers for Disease Control and Prevention, more than one-third of U.S. adults are obese, and approximately 12.5 million children and adolescents ages two to 19 years are obese. Research indicates a tripling in the youth obesity rate over the past three decades. While this increase has stabilized between the years 2005 and 2010, in 2010, 38% of public school children were overweight and obese. Overweight youth face increased risks for many serious detrimental health conditions that do not commonly occur during childhood, including high cholesterol and type 2 diabetes. Additionally, more than 80% of obese adolescents remain obese as adults.
3. SSB consumption. According to the U.S. Department of Agriculture, in 2009, Americans consumed 13.8 billion gallons of SSBs, which equates to nearly 45 gallons per capita annually of SSBs with added caloric sweeteners. According to the UCLA Center for Health Policy Research, in California, 41% of children ages 2-11 and 62% of adolescents ages 12-17 drink at least one SSB every day. In addition, 24% of adults drink at least one SSB on average per day. Adults who drink SSBs occasionally (not every day) are 15% more likely to be overweight or obese, and adults who drink one or more SSBs per day are 27% more likely to be overweight or obese than adults who do not. According to a report produced by the Robert Wood Johnson Scholar’s Program, SSBs were the single largest contributor to energy intake during the last decade, and SSB consumption has increased by almost 500% during the past 50 years.
4. Consumer view of SSBs. In February 2014, the Field Research Corporation released a poll of 1,002 registered voters in California on behalf of The California Endowment. The poll found that statewide 74% of voters support a requirement that beverage companies post health warning labels on SSBs to alert consumers that their daily consumption contributes to diabetes, obesity, and tooth decay. The requirement also carries strong bipartisan support. The poll also found that nearly two in three voters continue to support taxing the sale of SSBs and to use the proceeds for school nutrition and physical activity programs for kids, and distributing the revenues to schools, public health departments, and local community programs across the state based on each community’s diabetes and obesity rates. Further, the poll found that seven in 10 Californians support changing the rules governing the food assistance program so that recipients cannot use the food assistance benefit to buy SSBs. The Rudd Center for Food Policy & Obesity at the University of Connecticut released a study in which 982 parents with at least one child aged two to 17, from an ethnically diverse population sample, were asked about SSBs. The survey found that one-third or more of parents relied on packing claims, such as “low-calorie,” “real/natural,” and “vitamin C” to influence SSB purchasing decisions. Many parents believe that SSBs with such marketing claims, which may imply they provide essential nutrition, are a healthy option for their children, particularly flavored waters and fruit and sports drinks.

A New York Times (NYT) article from October 2015, “The Decline of ‘Big Soda’” stated that while many SSB tax initiatives have failed across the U.S., the bigger picture is that soda companies are losing the war. The article notes that over the last 20 years, sales of full-calorie soda in the U.S. have plummeted by more than 25% while sales of bottled water have rapidly increased, making it the single largest change in the American diet in the last decade. The article notes that from 2004 to 2012, children consumed 79 fewer SSB calories a day, representing a 4% cut in calories over all. In Philadelphia, soda consumption among teens dropped by 24% from 2007 to 2013, and the Pennsylvania Department of Public Health reported a sustained decline in childhood obesity over the last seven years. In Philadelphia, the change is attributed to school districts forbidding the sale of SSBs in schools and limiting their availability in public vending machines. The decline in childhood obesity in Philadelphia has also affected children of color, not just white children, as obesity among African-American boys declined by 11.3% compared with 8.1% for all boys from 2006 to 2013.

1. Providing understandable caloric information to consumers. A study published in December 2014 in the American Journal of Public Health, “Reducing [SSB] Consumption by Providing Caloric Information: How Black Adolescents Alter their Purchases and Whether the Effects Persist,” concluded that one promising environmental program to reduce consumption of SSBs is to provide consumers with easily interpretable caloric information. In an area with six corner stores close to middle and high schools in Maryland, consumers were presented with information about caloric intake on signs posted on the stores’ beverages cases that included the time necessary to burn off those calories in the form of a physical activity, such as running or walking. When provided with easily understandable caloric information, consumers purchased smaller servings of SSBs, switched from an SSB to a beverage with no calories, or opted not to purchase a beverage at all. The study found that providing the easily understandable caloric information had a persistent effect on reducing SSB purchases for approximately six weeks after the signs with the caloric information were removed.

The NYT article from 2015 highlights a similar initiative in Philadelphia sponsored by the Food Trust in which signs taped on the glass refrigerator doors inside a convenience store warned customers about the calories contained in the products, such as “Did you know it takes 65 minutes of dancing to work off a bottle of soda?” The owner of the corner store stated that such an initiative, as well as increasing access to fresh fruit and other healthy options, helped in educating customers about the negative impacts of SSBs and in guiding their choices in either lessening consumption of SSBs or forgoing them altogether.

1. Nutrition Facts label update. According to the federal Food and Drug Administration’s (FDA) Web site, on May 20, 2016, the FDA announced the new Nutrition Facts label for packaged foods to reflect new scientific information, including the link between diet and chronic diseases such as obesity and heart disease. The new label will make it easier for consumers to make better informed food choices. FDA published the final rules in the Federal Register on May 27, 2016. Changes include increasing the type size for “Calories,” “servings per container,” and the “Serving size” declaration, and bolding the number of calories and the “Serving size” declaration to highlight this information. Also, “added sugars,” in grams and as percent Daily Value will be included on the label. The FDA states that scientific data shows that it is difficult to meet nutrient needs while staying within calorie limits if you consume more than 10% of your total daily calories from added sugar, and this is consistent with the 2015-2020 Dietary Guidelines for Americans.
2. Balance Calories Initiative (BCI). According to the American Beverage Association (ABA), with major support from Coke, Pepsi, and Dr. Pepper Snapple Group, BCI is a national effort to help fight obesity by reducing sugar and calories consumed from beverages and promoting calorie awareness and balance. Through the BCI, the ABA fosters relationships with local leaders and community partners who are influential and able to serve as messengers with their constituents. In 2016, BCI started outreach in Little Rock, Ark; East Los Angeles; and the New York neighborhoods of South Bronx and Brooklyn’s Bedford-Stuyvesant and Crown Heights. Through BCI, the ABA has partnered with community groups in California, such as Barrio Action Youth & Family Network and the Los Angeles Urban League, to train staff in health-focused initiatives and to incorporate BCI’s message into organizations’ programming and community engagement, as well as to increase awareness of and access to lower-calorie, no-calorie, smaller-portion, and water options.
3. Prior legislation. AB 2782 (Bloom of 2016) would have imposed a health promotion fee of $0.02 per fluid ounce on bottled SSBs and concentrates, and established the Healthy California Fund for allocation to various state departments for purposes of reducing the incidence and impact of diabetes, obesity, and dental disease in California. AB 2782 died in the Assembly Health Committee without being heard.

SB 203 (Monning of 2015) was substantially similar to this bill. SB 203 failed passage in the Senate Health Committee.

AB 1357 (Bloom of 2015) was substantially similar to AB 2782. AB 1357 failed passage in the Assembly Health Committee.

SCR 34 (Monning, Chapter 99, Statutes of 2015) proclaims the month of September 2015, and each year thereafter, as Childhood Obesity Awareness Month, and expresses the Legislature’s support of various programs that work to reduce obesity among children, including those that increase access to affordable healthful foods and beverages and provide less access to high-calorie foods and SSBs.

SB 1000 (Monning of 2014) was substantially similar to this bill. SB 1000 failed passage in the Assembly Health Committee.

SB 622 (Monning of 2013) would have enacted the Sweetened Beverage Tax Law, which imposed a one-cent per fluid ounce tax on any beverage that adds caloric sweeteners, such as sodas, energy drinks, sweet teas, and sports drinks. SB 622 would have required funds generated by the Sweetened Beverage Tax to be directed to the newly created Children’s Health Promotion Fund and allocated to statewide childhood obesity prevention activities and programs. SB 622 was held on the Senate Appropriations Committee suspense file.

AB 1746 (Williams of 2012) would have, commencing July 1, 2013, restricted the sale of electrolyte replacement beverages in middle schools and high schools to specified times before and after school. AB 1746 was held on the Assembly Appropriations Committee suspense file.

AB 669 (Monning of 2011) was substantially similar to SB 622. AB 669 was held on the Assembly Revenue and Taxation Committee suspense file.

AB 2100 (Coto of 2010) would have imposed a one cent tax per teaspoon of added sweetener in a bottled sweetened beverage or in a sweetened concentrate. AB 2100 was held in the Assembly Revenue and Taxation Committee without being heard.

SB 1210 (Florez of 2010) was substantially similar to SB 622. SB 1210 was held on the Senate Revenue and Taxation Committee suspense file.

1. Support. Supporters, largely health advocates and local governments, argue that this bill will raise awareness among consumers by providing them with clearly labeled information about the products they are consuming and the potential harmful health effects of consuming SSBs. Supporters state that SSBs are the biggest contributor of added calories in the American diet and the leading driver in the diabetes and obesity epidemic, and that SSB consumption is directly linked to poor diet, type 2 diabetes, cardiovascular disease, dental caries, weight gain, and obesity, some of which are also directly linked to cancer risk. Supporters further argue that consumption of SSBs has increased the risk of being overweight for adults by 27% and children by 55%, and has disproportionately affected minority groups, such as African-American, Latino, American Indian, and Alaska Native populations. Supporters state that health warning labels have been proven to curb against the use of harmful products, such as the prominent warning on cigarette packages, and that health labels on SSBs are a critical component in a broad public health campaign to promote better health outcomes and help consumers make informed choices.
2. Opposition. Opponents, largely beverage industry and retailer representatives, argue that government warning labels on a subset of beverage products will do little to teach Californians that good health comes from balancing physical exercise with diet, and that the labeling will feed into confusion by labeling some products and not others as contributors to complex health issues. Opponents state that this bill would expose beverage manufacturers and food retailers to lawsuits, fines, and penalties based on state-only labeling requirements for SSBs. Opponents further argue that this bill burdens companies to label products for the California market. California Teamsters states that if SSBs are required to contain a health warning, it will drive down consumption and affect their members’ jobs in the beverage industry.

SUPPORT AND OPPOSITION:

Support: Alameda County Board of Supervisors

American Academy of Pediatrics

American Cancer Society Cancer Action Network

American Diabetes Association

American Heart Association/American Stroke Association

Asian and Pacific Islander Obesity Prevention Alliance

Asian Law Alliance

Association of California Healthcare Districts

Blue Shield of California

Burbank Community YMCA

California Academy of Nutrition & Dietetics

California Academy of PAs

California Association for Health, Physical Education, Recreation and Dance

California Black Health Network

California Chapter of the American Association of Clinical Endocrinologists

California Children’s Hospital Association

California Chiropractic Association

California Dental Hygienists’ Association

California Food Policy Advocates

CaliforniaHealth+ Advocates

California Naturopathic Doctors Association

California Nurses Association

California Optometric Association

California Pan-Ethnic Health Network

California Physical Therapy Association

California Rural Indian Health Board, Inc.

California School Nurses Organization

California State Alliance of YMCAs

California WIC Association

Center for Collaborative Solutions

Center for Science in the Public Interest

Central California Alliance for Health

ChangeLab Solutions

Channel Islands YMCA

Charles R. Drew University of Medicine and Science

Children Now

City of Albany

City of Berkeley

City of El Cerrito

City of Oakland

City of Richmond

Community Clinic Association of Los Angeles County

Congressman Mark Takano

Congresswoman Nanette Diaz Barragan

Congresswoman Karen Bass

Congresswoman Lucille Roybal-Allard

Consumer Federation of California

Corona-Norco Family YMCA

County Health Executives Association of California

Dientes Community Dental

First 5 California

First 5 Monterey County

Health Access California

Health Officers Association of California

Latino Coalition for a Healthy California

Public Health Advocates

Public Health Institute

San Francisco Medical Society

San Luis Obispo County YMCA

Santa Clara County Board of Supervisors

Santa Monica Family YMCA

Sonoma County Family YMCA

Southwest California Legislative Council

YMCA of the Central Bay Area

YMCA of Greater Whittier

YMCA of Silicon Valley

YMCA of West San Gabriel Valley

One individual

Oppose: American Beverage Association

CalAsian Chamber of Commerce

California Automatic Vendors Council

California Chamber of Commerce

California Grocers Association

California Hispanic Chambers of Commerce

California Hotel & Lodging Association

California Independent Oil Marketers Association

California League of Food Processors

California Manufacturers & Technology Association

California Restaurant Association

California Retailers Association

California Teamsters

California Travel Association

Civil Justice Association of California

Grocery Manufacturers Association

International Franchise Association

Juice Products Association

Los Angeles Area Chamber of Commerce

Los Angeles County Business Federation

National Federation of Independent Businesses

San Gabriel Valley Economic Partnership

Valley Industry & Commerce Association

-- END --