Bill Text: CA AB1616 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Food safety: cottage food operations.

Spectrum: Slight Partisan Bill (Democrat 6-2)

Status: (Passed) 2012-09-21 - Chaptered by Secretary of State - Chapter 415, Statutes of 2012. [AB1616 Detail]

Download: California-2011-AB1616-Amended.html

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BILL NUMBER: AB 1616	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JULY 3, 2012
	AMENDED IN ASSEMBLY  MAY 3, 2012
	AMENDED IN ASSEMBLY  APRIL 25, 2012
	AMENDED IN ASSEMBLY  APRIL 10, 2012

INTRODUCED BY   Assembly Member Gatto
   (Coauthors: Assembly Members  Fletcher,  Huffman,
Nestande, V. Manuel Pérez, and Wieckowski)
   (  Coauthor:   Senator  
DeSaulnier   Coauthors:   Senators  
Correa   and DeSaulnier  )

                        FEBRUARY 8, 2012

   An act to amend Sections 109947, 110460, 111955, 113789, 114021,
and 114023 of, to add Section 113758 to, and to add Chapter 11.5
(commencing with Section 114365) to Part 7 of Division 104 of, the
Health and Safety Code, relating to food safety.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1616, as amended, Gatto. Food safety: cottage food operations.
   Existing law, the Sherman Food, Drug, and Cosmetic Law (Sherman
Law), requires the State Department of Public Health to regulate the
manufacture, sale, labeling, and advertising activities related to
food, drugs, devices, and cosmetics in conformity with the Federal
Food, Drug, and Cosmetic Act. The Sherman Law makes it unlawful to
manufacture, sell, deliver, hold, or offer for sale any food that is
misbranded. Food is misbranded if its labeling does not conform to
specified federal labeling requirements regarding nutrition, nutrient
content or health claims, and food allergens. Violation of this law
is a misdemeanor.
   The existing California Retail Food Code provides for the
regulation of health and sanitation standards for retail food
facilities, as defined, by the State Department of Public Health.
Under existing law, local health agencies are primarily responsible
for enforcing the California Retail Food Code. That law exempts
private homes from the definition of a food facility, and prohibits
food stored or prepared in a private home from being used or offered
for sale in a food facility. A violation of these provisions is a
misdemeanor.
   This bill would include a cottage food operation, as defined, that
is registered or has a permit within the private home exemption of
the California Retail Food Code. The bill would also exclude a
cottage food operation from specified food processing establishment
and Sherman Law requirements. This bill would require a cottage food
operation to meet specified requirements relating to training,
sanitation, preparation, labeling, and permissible types of sales.
The bill would establish various zoning and permit requirements
relating to cottage food operations.
   By imposing duties on local officials and adding new crimes, this
bill would create 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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) Small businesses have played an important role in helping slow
economies recover and prosper as an engine of job creation. During
the 1990s, small businesses created the majority of new jobs and now
account for 65 percent of United States employment.
   (b) California, and the United States as a whole, are facing
growing obesity and obesity-related disease epidemics.
   (1) Two-thirds of American adults and nearly one-third of children
and teens are obese or overweight, placing them at risk for
developing chronic diseases such as diabetes, heart disease, and
cancer.
   (2) One in every nine California children, one in three teens, and
over half of adults are already overweight or obese. This epidemic
affects virtually all Californians.
   (3) These health conditions are preventable and curable through
lifestyle choices that include consumption of healthy fresh foods.
   (c) For decades, low-income and rural communities have faced
limited opportunities to purchase healthy foods. Often, without cars
or convenient public transportation options, low-income residents in
these areas must rely for much of their shopping on expensive, fatty,
processed foods sold at convenience and corner stores.
   (d) There is a growing movement in California to support
community-based food production, sometimes referred to as "cottage
food," "artisanal food," "slow food," "locally based food," or "urban
agriculture" movements. These movements seek to connect food to
local communities, small businesses, and environmental
sustainability.
   (e) Increased opportunities for entrepreneur development through
microenterprises can help to supplement household incomes, prevent
poverty and hunger, and strengthen local economies.
   (f) At least 32 other states have passed laws that allow small
business entrepreneurs to use their home kitchens to prepare, for
sale, foods that are not potentially hazardous.
   (g) Even some bake sales are currently illegal in California.
   (h) It is the intent of the Legislature to enact a homemade food
act specifically designed to help address these challenges and
opportunities.
  SEC. 2.  Section 109947 of the Health and Safety Code is amended to
read:
   109947.  "Food processing facility" means any facility operated
for the purposes of manufacturing, packing, or holding processed
food. Food processing facility does not include a food facility as
defined in Section 113785, a cottage food operation that is
registered or has a permit pursuant to Section 114365, or any
facility exclusively storing, handling, or processing dried beans.
  SEC. 3.  Section 110460 of the Health and Safety Code is amended to
read:
   110460.  No person shall engage in the manufacture, packing, or
holding of any processed food in this state unless the person has a
valid registration from the department, except those engaged
exclusively in the storing, handling, or processing of dried beans.
The registration shall be valid for one calendar year from the date
of issue, unless it is revoked. The registration shall not be
transferable. This section shall not apply to a cottage food
operation that is registered or has a permit pursuant to Section
114365.
  SEC. 4.  Section 111955 of the Health and Safety Code is amended to
read:
   111955.  "Food processing establishment," as used in this chapter,
shall mean any room, building, or place or portion thereof,
maintained, used, or operated for the purpose of commercially
storing, packaging, making, cooking, mixing, processing, bottling,
canning, packing, slaughtering, or otherwise preparing or handling
food except restaurants. "Food processing establishment" shall not
include a cottage food operation that is registered or has a permit
pursuant to Section 114365.
  SEC. 5.  Section 113758 is added to the Health and Safety Code, to
read:
   113758.  (a) "Cottage food operation" means an enterprise that has
not more than fifty thousand dollars ($50,000) in gross annual sales
and is operated by a cottage food operator and not more than one
cottage food employee, not including a family member or household
member of the cottage food operator, within the registered or
permitted area of a private home where cottage food products are
prepared or packaged for direct, indirect, or direct and indirect
sale to consumers pursuant to this part. A cottage food operation
includes both of the following:
   (1) A "Class A" cottage food operation, which is a cottage food
operation that may engage only in direct sales of cottage food
products.
   (2) A "Class B" cottage food operation, which is a cottage food
operation that may engage in both direct sales and indirect sales of
cottage food products.
   (b) For purposes of this section, the following definitions shall
apply:
   (1) "Cottage food employee" means an individual, paid or
volunteer, who is involved in the preparation, packaging, handling,
and storage of a cottage food product, or otherwise works for the
cottage food operation. An employee does not include an immediate
family member or household member of the cottage food operator.
   (2) "Cottage food operator" means an individual who operates a
cottage food operation in his or her private home and is the owner of
the cottage food operation.
   (3) "Cottage food products" means not potentially hazardous foods,
 as described   including foods listed  in
Section 114365.5,  that do not meet the definition of a
potentially hazardous food, as defined in Section 113871, and 
that are prepared for sale in the kitchen of a cottage food
operation.
   (4) "Direct sale" means a transaction between a cottage food
operation operator and a consumer, where the consumer purchases the
cottage food product directly from the cottage food operation. Direct
sales include, but are not limited to, transactions at holiday
bazaars or other temporary events, such as bake sales or food swaps,
transactions at farm stands, certified farmers' markets, or through
community-supported agriculture subscriptions, and transactions
occurring in person in the cottage food operation.
   (5) "Indirect sale" means an interaction between a cottage food
operation, a third-party retailer, and a consumer, where the consumer
purchases cottage food products made by the cottage food operation
from a third-party retailer. Indirect sales include, but are not
limited to, sales made to retail shops or to retail food facilities
where food may be immediately consumed on the premises.
   (6) "Private home" means a dwelling, including an apartment or
other leased space, where individuals reside.
   (7) "Registered or permitted area" means the portion of a private
home used for the preparation, packaging, storage, or handling of
cottage food products and related ingredients or equipment, or both.
  SEC. 6.  Section 113789 of the Health and Safety Code is amended to
read:
   113789.  (a) "Food facility" means an operation that stores,
prepares, packages, serves, vends, or otherwise provides food for
human consumption at the retail level, including, but not limited to,
the following:
   (1) An operation where food is consumed on or off the premises,
regardless of whether there is a charge for the food.
   (2) Any place used in conjunction with the operations described in
this subdivision, including, but not limited to, storage facilities
for food-related utensils, equipment, and materials.
   (b) "Food facility" includes permanent and nonpermanent food
facilities, including, but not limited to, the following:
   (1) Public and private school cafeterias.
   (2) Restricted food service facilities.
   (3) Licensed health care facilities.
   (4) Commissaries.
   (5) Mobile food facilities.
   (6) Mobile support units.
   (7) Temporary food facilities.
   (8) Vending machines.
   (9) Certified farmers' markets, for purposes of permitting and
enforcement pursuant to Section 114370.
   (10) Farm stands, for purposes of permitting and enforcement
pursuant to Section 114375.
   (c) "Food facility" does not include any of the following:
   (1) A cooperative arrangement wherein no permanent facilities are
used for storing or handling food.
   (2) A private home, including a cottage food operation that is
registered or has a permit pursuant to Section 114365.
   (3) A church, private club, or other nonprofit association that
gives or sells food to its members and guests, and not to the general
public, at an event that occurs not more than three days in any
90-day period.
   (4) A for-profit entity that gives or sells food at an event that
occurs not more than three days in a 90-day period for the benefit of
a nonprofit association, if the for-profit entity receives no
monetary benefit, other than that resulting from recognition from
participating in an event.
   (5) Premises set aside for wine tasting, as that term is used in
Section 23356.1 of the Business and Professions Code and in the
regulations adopted pursuant to that section, that comply with
Section 118375, regardless of whether there is a charge for the wine
tasting, if no other beverage, except for bottles of wine and
prepackaged nonpotentially hazardous beverages, is offered for sale
for onsite consumption and no food, except for crackers, is served.
   (6) 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.
   (7) A commercial food processing plant as defined in Section
111955.
   (8) A child day care facility, as defined in Section 1596.750.
   (9) A community care facility, as defined in Section 1502.
   (10) A residential care facility for the elderly, as defined in
Section 1569.2.
   (11) A residential care facility for the chronically ill, which
has the same meaning as a residential care facility, as defined in
Section 1568.01.
   (12) Premises set aside by a beer manufacturer, as defined in
Section 25000.2 of the Business and Professions Code, that comply
with Section 118375, for the purposes of beer tasting, regardless of
whether there is a charge for the beer tasting, if no other beverage,
except for beer and prepackaged nonpotentially hazardous beverages,
is offered for sale for onsite consumption, and no food, except for
crackers or pretzels, is served.
  SEC. 7.  Section 114021 of the Health and Safety Code is amended to
read:
   114021.  (a) Food shall be obtained from sources that comply with
all applicable laws.
   (b) Food stored or prepared in a private home shall not be used or
offered for sale in a food facility, unless that food is prepared by
a cottage food operation that is registered or has a permit pursuant
to Section 114365.
  SEC. 8.  Section 114023 of the Health and Safety Code is amended to
read:
   114023.  Food in a hermetically sealed container shall be obtained
from a food processing plant that is regulated by the food
regulatory agency that has jurisdiction over the plant, or from a
cottage food operation that is registered or has a permit pursuant to
Section 114365.
  SEC. 9.  Chapter 11.5 (commencing with Section 114365) is added to
Part 7 of Division 104 of the Health and Safety Code, to read:
      CHAPTER 11.5.  COTTAGE FOOD OPERATIONS


   114365.  (a) (1) (A) A "Class A" cottage food operation shall not
be open for business unless it is registered with the local
enforcement agency in a manner that includes a self-certification
checklist approved by the local enforcement agency that verifies that
the cottage food operation conforms to this chapter  and
with   , including  the following requirements:
   (i) No cottage food preparation, packaging, or handling may occur
in the home kitchen concurrent with any other domestic activities
such as family meal preparation, dishwashing, clothes washing or
ironing, kitchen cleaning, or guest entertainment.
   (ii) No infants, small children, or pets may be in the home
kitchen during the preparation, packaging, or handling of any cottage
food products.
   (iii) Only normal, noncommercial types of kitchen equipment and
utensils may be used to produce cottage food products.
   (iv) All food contact surfaces, equipment, and utensils used for
the preparation, packaging, or handling of any cottage food products
shall be washed, rinsed, and sanitized before each use.
   (v) All food preparation and food and equipment storage areas
shall be maintained free of rodents and insects.
   (B) The department shall post the requirements described in
subparagraph (A) on its Internet Web site. 
   (C) A local enforcement agency may seek recovery from a "Class A"
cottage food operation of an amount that does not exceed the local
enforcement agency's reasonable costs of inspecting the "Class A"
cottage food operation for compliance of this chapter, if the "Class
A" cottage food operation is found to be in violation of this
chapter. 
   (2) (A) A "Class B" cottage food operation shall not be open for
business unless it obtains a permit from the local enforcement agency
in a manner approved by the local enforcement agency to engage in
the direct and indirect sale of cottage food products.
   (B) A "Class B" cottage food operation shall comply with the
requirements described in clauses (i) to (v), inclusive, of
subparagraph (A) of paragraph (1) of subdivision (a). 
   (C) (i) A "Class B" cottage food operation shall be authorized to
sell cottage food products within the county in which the "Class B"
cottage food operation is permitted.  
   (ii) Counties may agree to allow cottage food products which are
produced by a "Class B" cottage food operation that is permitted in
another county to be sold in its own county. 
   (b) (1) A registration or permit shall be issued by the
enforcement agency when an investigation has determined that the
proposed cottage food operation and its method of operation conform
to this chapter.
   (2) A registration or permit, once issued, is nontransferable. A
registration or permit shall be valid only for the  persons
  person  , location, type of food sales, and
distribution activity specified by that registration or permit, and,
unless suspended or revoked for cause, for the time period indicated.

   (c) A local enforcement agency may seek recovery from acottage
food operation of an amount that does not exceed the local
enforcement agency's reasonable costs of inspecting a "Class A" or
"Class B" cottage food operation for compliance with this chapter.

   114365.2.  A cottage food operation that is registered or has a
permit issued pursuant to Section 114365 shall be considered a
restricted food service facility for purposes of, and subject to,
Sections 113953.5, 114101, 114130, 114149.1, 114256.1, 114259.5,
114268, 114279, 114285, and 114286. A cottage food operation that is
registered or has a permit also shall be subject to Sections 113715
and 113980 and to all of the following requirements:
   (a) A person  with a contagious illness  shall refrain
from work in the registered or permitted area of the cottage food
operation  with a contagious illness  .
   (b) A person involved in the preparation or packaging of cottage
food products shall keep his or her hands and exposed portions of his
or her arms clean and shall wash his or her hands before any food
preparation or packaging activity in a cottage food operation.
   (c) Water used during the preparation of cottage food products
shall meet the potable drinking water standards described in Section
113869, except that a cottage food operation shall not be required to
have an indirect sewer connection. Water used during the preparation
of cottage food products includes both of the following:
   (1) The washing, sanitizing, and drying of any equipment used in
the preparation of a cottage food product.
   (2) The washing, sanitizing, and drying of hands and arms.
   (d) A person who prepares or packages cottage food products shall
complete a food handler course described in Section 113948.
   (e) A cottage food operation shall include on its cottage food
package a statement of disclosure informing the consumer that the
cottage food product was prepared in a private home and the cottage
food operation's registration number or permit number as assigned by
the local enforcement agency.
   114365.5.  (a) The department shall adopt and post on its Internet
Web site a list of not potentially hazardous foods  and their
ethnic variations  that are approved for sale by a cottage food
operation.
   (b) This list of not potentially hazardous foods shall include,
but not be limited to, all of the following:
   (1) Baked goods without cream, custard, or meat fillings, such as
breads, churros, cookies, pastries, and tortillas.
   (2) Candy, such as brittle and toffee.
   (3) Chocolate-covered nonperishable foods, such as nuts and dried
fruit.
   (4) Dried fruit.
   (5) Dried pasta.
   (6) Dry baking mixes.
   (7) Fruit pies  , fruit empanadas, and fruit tamales  .

   (8) Fruit or vegetable empanadas and tamales.  
   (9) 
    (8)   Granola and other dried cereal. 
   (10) 
    (9)  Herb blends and dried mole paste. 
   (11) 
    (10)  Honey and sweet sorghum syrup. 
   (l2) 
    (11)  Jams, jellies, preserves, and fruit butter.

   (13) Kombucha.  
   (14) 
    (12)  Nut mixes and nut butters. 
   (15) 
    (13)  Popcorn. 
   (16) 
    (14)  Rice cakes and rice noodles that comply with the
handling and labeling requirements of Sections 111222 and 111223.

   (17) 
    (15)  Vinegar and mustard. 
   (18) 
    (16)  Roasted coffee and dried tea. 
   (19) 
    (17)  Waffle cones and pizelles.
   (c) Additions to the list of foods specified in subdivision (b)
are subject to approval by the department.
   114365.7.  All of the following shall apply to cottage food
operations:
   (a) A city, county, or city and county shall not prohibit cottage
food operations in any residential dwellings, but shall do one of the
following:
   (1) Classify these operations as a permitted use of residential
property for zoning purposes.
   (2) Grant a nondiscretionary permit to use a residence as any
cottage food operation that complies with local ordinances
prescribing reasonable standards, restrictions, and requirements
concerning spacing and concentration, traffic control, parking, and
noise control relating to those homes. Any noise standards shall be
consistent with local noise ordinances implementing the noise element
of the general plan. The permit issued pursuant to this paragraph
shall be granted by the zoning administrator, or if there is no
zoning administrator, by the person or persons designated by the
planning agency to grant these permits, upon the certification
without a hearing.
   (3) Require any cottage food operation to apply for a permit to
use a residence for its operation. The zoning administrator, or if
there is no zoning administrator, the person or persons designated by
the planning agency to handle the use permits, shall review and
decide the applications. The use permit shall be granted if the
cottage food operation complies with local ordinances, if any,
prescribing reasonable standards, restrictions, and requirements
concerning the following factors: spacing and concentration, traffic
control, parking, and noise control relating to those homes. Any
noise standards shall be consistent with local noise ordinances
implementing the noise element of the general plan. The local
government shall process any required permit as economically as
possible. Fees charged for review shall not exceed the costs of the
review and permit process. An applicant may request a verification of
fees, and the city, county, or city and county shall provide the
applicant with a written breakdown within 45 days of the request. The
application form for cottage food operation permits shall include a
statement of the applicant's right to request the written fee
verification.
   (b) In connection with any action taken pursuant to paragraph (2)
or (3) of subdivision (a), a city, county, or city and county shall
do all of the following:
   (1) Upon the request of an applicant, provide a list of the
permits and fees that are required by the city, county, or city and
county, including information about other permits that may be
required by other departments in the city, county, or city and
county, or by other public agencies. The city, county, or city and
county shall, upon request of any applicant, also provide information
about the anticipated length of time for reviewing and processing
the permit application.
   (2) Upon the request of an applicant, provide information on the
breakdown of any individual fees charged in connection with the
issuance of the permit.
   (3) If a deposit is required to cover the cost of the permit,
provide information to the applicant about the estimated final cost
to the applicant of the permit, and procedures for receiving a refund
from the portion of the deposit not used.
   (c) Use of a residence for the purposes of a cottage food
operation shall not constitute a change of occupancy for purposes of
the State Housing Law (Part 1.5 (commencing with Section 17910) of
Division 13), or for purposes of local building and fire codes.
   (d) Cottage food operations shall be considered residences for the
purposes of the State Uniform Building Standards Code and local
building and fire codes.
  SEC. 10.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
   However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.