Bill Text: CA AB1915 | 2011-2012 | Regular Session | Introduced

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

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Bill Title: Safe routes to school.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2012-09-27 - Chaptered by Secretary of State - Chapter 640, Statutes of 2012. [AB1915 Detail]

Download: California-2011-AB1915-Introduced.html

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BILL NUMBER: AB 1915	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Alejo

                        FEBRUARY 22, 2012

   An act to amend Sections 110460, 111940, 111955, 113789, 114021,
and 114023 of, and to add Article 5 (commencing with Section 113400)
to Chapter 11 of Part 6 of Division 104 of, the Health and Safety
Code, relating to food safety.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1915, as introduced, Alejo. Food safety: cottage food
productions.
   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
engage in the manufacturing, packing, or holding of processed food in
this state without a valid registration from the department, or 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 also
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 exempt a cottage food production, as defined, from
specified food processing establishment, Sherman Law, and California
Retail Food Code requirements. This bill would require a cottage
food production to meet specified requirements relating to where
cottage foods may be sold and labeling of those foods. This bill
would authorize the State Department of Public Health to sample and
inspect the cottage foods for adulteration and misbranding, as
specified. This bill would prescribe civil penalties for violation of
its provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


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

  SECTION 1.  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
production, as defined in Section 113400. 
  SEC. 2.  Section 111940 of the Health and Safety Code is amended to
read:
   111940.  (a) If any person violates any provision of Chapter 4
(commencing with Section 111950), Chapter 5 (commencing with Section
112150), Chapter 6 (commencing with Section 112350), Chapter 7
(commencing with Section 112500), Chapter 8 (commencing with Section
112650), Chapter 10 (commencing with Section 113025),  or
 Article 3 (commencing with Section 113250) of Chapter 11 of
this part,  Article 5 (commencing with Section 113400) of
Chapter 11 of this part,  or Chapter 4 (commencing with Section
108100) of Part 3, or any regulation adopted pursuant to these
provisions, the department may assess a civil penalty against that
person as provided by this section.
   (b) The penalty may be in an amount not to exceed one thousand
dollars ($1,000) per day. Each day that a violation continues shall
be considered a separate violation.
   (c) If, after examination of a possible violation and the facts
surrounding that possible violation, the department concludes that a
violation has occurred, the department may issue a complaint to the
person charged with the violation. The complaint shall allege the
acts or failures to act that constitute the basis for the violation
and the amount of the penalty. The complaint shall be served by
personal service or by certified mail and shall inform the person so
served of the right to a hearing.
   (d) Any person served with a complaint pursuant to subdivision (c)
of this section may, within 20 days after service of the complaint,
request a hearing by filing with the department a notice of defense.
A notice of defense is deemed to have been filed within the 20-day
period if it is postmarked within the 20-day period. If a hearing is
requested by the person, it shall be conducted within 90 days after
the receipt by the department of the notice of defense. If no notice
of defense is filed within 20 days after service of the complaint,
the department shall issue an order setting the penalty as proposed
in the complaint unless the department and the person have entered
into a settlement agreement, in which case the department shall issue
an order setting the penalty in the amount specified in the
settlement agreement. When the person has not filed a notice of
defense or where the department and the person have entered into a
settlement agreement, the order shall not be subject to review by any
court or agency.
   (e) Any hearing required under this section shall be conducted
pursuant to the procedures specified in Section 100171, except to the
extent they are inconsistent with the specific requirements of this
section.
   (f) Orders setting civil penalties under this section shall become
effective and final upon issuance thereof, and payment shall be made
within 30 days of issuance. A copy of the order shall be served by
personal service or by certified mail upon the person served with the
complaint.
   (g) Within 30 days after service of a copy of a decision issued by
the director after a hearing, any person so served may file with the
superior court a petition for writ of mandate for review of the
decision. Any person who fails to file the petition within this
30-day period may not challenge the reasonableness or validity of the
decision or order of the director in any judicial proceeding brought
to enforce the decision or order or for other remedies. Section
1094.5 of the Code of Civil Procedure shall govern any proceedings
conducted pursuant to this subdivision. In all proceedings pursuant
to this subdivision, the court shall uphold the decision of the
director if the decision is based upon substantial evidence in the
whole record. The filing of a petition for writ of mandate shall not
stay any corrective action required pursuant to the Miscellaneous
Food, Food Facility, and Hazardous Substances Act, as defined in
subdivision (b) of Section 27, or the accrual of any penalties
assessed pursuant to this section. This subdivision does not prohibit
the court from granting any appropriate relief within its
jurisdiction.
   (h) The remedies under this section are in addition to, and do not
supersede, or limit, any and all other remedies, civil or criminal.
  SEC. 3.  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 production, as defined in Section 113400. 
  SEC. 4.  Article 5 (commencing with Section 113400) is added to
Chapter 11 of Part 6 of Division 104 of the Health and Safety Code,
to read:

      Article 5.  Cottage Food Productions


   113400.  Unless otherwise provided, terms used in this article
have the same meanings as those found under the California Retail
Food Code (Part 7 (commencing with Section 113700)). Additionally,
for purposes of this article, the following definitions apply:
   (a) "Adulterated" means either of the following:
   (1) Food that bears or contains any poisonous or deleterious
substance that may render the food impure or injurious to health.
   (2) Food that is manufactured, prepared, or stored in a manner
that deviates from a HACCP plan, as defined in Section 113801, as to
pose a discernable increase in risk.
   (b) "Cottage food" means home produced food that is not
potentially hazardous, as defined by Section 113871, and is offered
for retail sale. Nonpotentially hazardous foods include, but are not
limited to, baked products that do not have cream, custard, or meat
fillings; jams; jellies; candy; granola and other dry cereal;
popcorn; fruit butter; waffle cones and pizzelles; nut mixes;
chocolate covered nonperishables, including nuts and dried fruit;
roasted coffee; dry baking mixes; herb blends; dry teas; and honey.
   (c) "Cottage food production" means the production of food by a
person who, in his or her own home, produces nonpotentially hazardous
food items to be sold to consumers.
   (d) "Director" means the Director of the State Department of
Public Health.
   (e) "Potentially hazardous foods" has the same meaning as provided
in Section 113871.
   113401.  A cottage food production shall be subject to the
following labeling requirements:
   (a) A cottage food production shall package and label any food it
produces or packages for sale in compliance with the labeling
requirements of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
Sec. 343-1, et seq.).
   (b) All cottage food product labels shall contain the statement,
"This Product is Home Produced."
   113402.  Cottage foods may only be sold at facilities licensed to
sell food or at the site of the cottage food production.
   113403.  A cottage food production shall not be subject to
registration or fee requirements of the Sherman Food, Drug, and
Cosmetic Law (Part 5 (commencing with Section 109875)).
   113404.  (a) The provisions of this article shall be administered
by the State Department of Public Health.
   (b) For purposes of determining compliance with this article,
based on a consumer complaint, the director, or his or her
representative, may sample and inspect the cottage food for
misbranding and adulteration. Notwithstanding any other law, the
authorization to inspect the cottage food is limited to after the
cottage food has left the cottage food production site.
  SEC. 5.  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 production, as
defined in Section 113400  .
   (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. 6.  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
produced by a cottage food production that meets the requirements of
Article 5 (commencing with Section 113400) of Chapter 11 of Part 6
 .
  SEC. 7.  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 production that meets the requirements of Article 5
(commencing with Section 113400) of Chapter 11 of Part 6  .