Bill Text: CA SB20 | 2011-2012 | Regular Session | Amended

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

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Bill Title: Food facilities: menu labeling.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2011-10-02 - Chaptered by Secretary of State. Chapter 415, Statutes of 2011. [SB20 Detail]

Download: California-2011-SB20-Amended.html

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BILL NUMBER: SB 20	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 29, 2011
	AMENDED IN SENATE  APRIL 25, 2011

INTRODUCED BY   Senator Padilla

                        DECEMBER 6, 2010

    An act to amend Section 114094 of the Health and Safety
Code, relating to food facilities.   An act to repeal
and add Section 114094 of the Health and Safety Code, relating to
food facilities. 



	LEGISLATIVE COUNSEL'S DIGEST


   SB 20, as amended, Padilla. Food facilities: menu labeling.
   Existing law, the California Retail Food Code, requires, on and
after January 1, 2011, each food facility in the state that operates
under common ownership or control with at least 19 other food
facilities with the same name in the state and that offers for sale
substantially the same menu items or that meets other specified
criteria to disclose calorie content information per standard menu
item, as specified. The State Department of Public Health administers
and local enforcement agencies enforce this code. Existing law
provides that, on and after July 1, 2009, a food facility that
violates these provisions is guilty of an infraction.
   Existing law, the Federal Food, Drug, and Cosmetic Act, requires
certain restaurants and similar retail food establishments that are
part of a chain with 20 or more locations doing business under the
same name and offering for sale substantially the same menu items to
disclose nutrient content information, as specified, and provides
that certain state and local nutrient content information
requirements that are not identical to the federal law are preempted.

   This bill would provide that the calorie content disclosure
requirements of the California Retail Food Code are instead
applicable to certain food facilities that are part of a chain with
at least 20 locations doing business under the same name and offering
for sale substantially the same menu items.  
   By revising the definition of a crime and changing the duties of
local officials, this bill would impose a state mandated-local
program.  
   This bill would repeal the above-described state calorie content
disclosure requirements of the California Retail Food Code, and would
require a food facility that is subject to the federal disclosure
provisions for nutrient content information or was subject to the
state calorie content disclosure requirements, as specified, to
comply with these federal disclosure requirements and the regulations
adopted pursuant thereto. It would also require the department to
administer and local enforcement agencies to enforce these provisions
and would make a violation thereof an infraction. By expanding the
definition of a crime and adding new local enforcement duties, 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 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 hereby finds and declares all of the
following:
   (a) In 2008, the Legislature enacted Section 114094 of the Health
and Safety Code to provide consumers within California with better
access to nutritional information about prepared foods sold at food
facilities with at least 20 locations with the same name in the state
so that consumers can understand the nutritional value of available
foods.
   (b) On March 23, 2010, the federal Patient Protection and
Affordable Care Act was enacted to, among other things, provide
consumers in all states with access to nutritional information about
the prepared foods sold at restaurants or similar retail food
establishments that are part of a chain with 20 or more locations
doing business under the same name.
   SEC. 2.    Section 114094 of the   Health
and Safety Code   is repealed.  
   114094.  (a) For purposes of this section, the following
definitions shall apply:
   (1) "Food facility" means a food facility in the state that
operates under common ownership or control with at least 19 other
food facilities with the same name in the state that offer for sale
substantially the same menu items, or operates as a franchised outlet
of a parent company with at least 19 other franchised outlets with
the same name in the state that offer for sale substantially the same
menu items, except that a "food facility" does not include the
following:
   (A) Certified farmer's markets.
   (B) Commissaries.
   (C) Grocery stores, except for separately owned food facilities to
which this section otherwise applies that are located in the grocery
store. For purposes of this paragraph, "grocery store" means a store
primarily engaged in the retail sale of canned food, dry goods,
fresh fruits and vegetables, and fresh meats, fish, and poultry.
"Grocery store" includes convenience stores.
   (D) Licensed health care facilities.
   (E) Mobile support units.
   (F) Public and private school cafeterias.
   (G) Restricted food service facilities.
   (H) Retail stores in which a majority of sales are from a
pharmacy, as defined in Section 4037 of the Business and Professions
Code.
   (I) Vending machines.
   (2) "Calorie content information" means the total number of
calories per standard menu item, as that item is usually prepared and
offered for sale.
   (3) "Drive-through" means an area where a customer may provide an
order for and receive standard menu items while occupying a motor
vehicle.
   (4) "Menu board" means a posted list or pictorial display of food
or beverage items offered for sale by a food facility.
   (5) "Nutritional information" includes, but is not limited to, all
of the following, per standard menu item, as that item is usually
prepared and offered for sale:
   (A) Total number of calories.
   (B) Total number of grams of carbohydrates.
   (C) Total number of grams of saturated fat.
   (D) Total number of milligrams of sodium.
   (6) "Point of sale" means the location where a customer makes an
order.
   (7) "Standard menu item" means a food or beverage item offered for
sale by a food facility through a menu, menu board, or display tag
at least 180 days per calendar year, except that "standard menu item"
does not include any of the following:
   (A) A food item that is customized on a case-by-case basis in
response to an unsolicited customer request.
   (B) An alcoholic beverage, the labeling of which is not regulated
by the federal Food and Drug Administration.
   (C) A packaged food otherwise subject to the nutrition labeling
requirements of the federal Nutrition Labeling and Education Act of
1990.
   (D) A food item when served at a consumer self-service salad bar.
   (E) A food or beverage item when served at a consumer self-service
buffet.
   (8) "Reasonable basis" means any reasonable means recognized by
the federal Food and Drug Administration of determining nutritional
information, as well as calorie content information, for a standard
menu item, as usually prepared and offered for sale, including, but
not limited to, nutrient databases and laboratory analyses.
   (9) "Appetizer" means a food item that is generally served prior
to a food item that is generally regarded as the primary food item in
a meal. An "appetizer" includes a first course, starter, or small
plate.
   (10) "Dessert" means a food item that is generally served after a
food item that is generally regarded as the primary food item in a
meal. "Dessert" includes, but is not limited to, cakes, pastries,
pies, ice cream and food items that contain ice cream, confections,
and other sweets.
   (b) (1) Commencing July 1, 2009, to December 31, 2010, inclusive,
every food facility shall either disclose nutritional information as
required by paragraph (2), or comply with subdivision (c) during this
period of time.
   (2) (A) In order to comply with paragraph (1), a food facility
that does not provide sit-down service shall disclose the information
in a clear and conspicuous manner on a brochure that is made
available at the point of sale prior to or during the placement of an
order. A food facility that provides sit-down service shall provide
the nutritional information in a clear and conspicuous size and
typeface on at least one of the following:
   (i) A brochure available on the table.
   (ii) A menu next to each standard menu item.
   (iii) A menu, under an index section that is separate from the
listing of standard menu items.
   (iv) A menu insert.
   (v) A table tent on the table.
   (B) Notwithstanding subparagraph (A), a food facility that has a
drive-through area and uses a menu board to display or list standard
menu items at the point of sale shall, for purposes of the
drive-through area only, disclose the nutritional information in a
clear and conspicuous manner on a brochure that is available upon
request, and shall conspicuously display a notice at the point of
sale that reads: "NUTRITION INFORMATION IS AVAILABLE UPON REQUEST" or
other similar statement that indicates the disclosure of nutrition
information is available upon request.
   (c) (1) On and after January 1, 2011, every food facility that
provides a menu shall disclose calorie content information for a
standard menu item next to the item on the menu in a size and
typeface that is clear and conspicuous.
   (2) On and after January 1, 2011, every food facility that uses an
indoor menu board shall disclose calorie content information for a
standard menu item next to the item on the menu board in a size and
typeface that is clear and conspicuous.
   (3) On and after January 1, 2011, every food facility that uses a
display tag as an alternative to a menu or menu board to describe a
standard menu item that is displayed for sale in a display case
within the food facility shall disclose calorie content information
for that standard menu item on the display tag for that item in a
size and typeface that is clear and conspicuous.
   (4) On and after January 1, 2011, every food facility that has a
drive-through area and uses a menu board to display or list standard
menu items at the point of sale shall, for purposes of the
drive-through area only, disclose the nutritional information for
each standard menu item in a clear and conspicuous manner on a
brochure that is available upon request, and shall clearly and
conspicuously display a notice at the point of sale that reads:
"NUTRITION INFORMATION IS AVAILABLE UPON REQUEST" or other similar
statement that indicates the disclosure of nutrition information upon
request. If a food facility subject to this paragraph discloses
nutritional information in the manner described in subparagraph (B)
of paragraph (2) of subdivision (b), the food facility shall be
deemed to be in compliance with this paragraph.
   (d) For purposes of subdivision (c), the disclosure of calorie
content information on a menu or menu board next to a standard menu
item that is a combination of at least two standard menu items on the
menu or menu board, shall, based upon all possible combinations for
that standard menu item, include both the minimum amount of calories
for the calorie count information and the maximum amount of calories
for the calorie count information. If there is only one possible
total amount of calories, then this total shall be disclosed.
   (e) For purposes of subdivision (c), the disclosure of calorie
content information on a menu or menu board next to a standard menu
item that is not an appetizer or dessert, but is intended to serve
more than one individual, shall include both of the following:
   (1) The number of individuals intended to be served by the
standard menu item.
   (2) The calorie content information per individual serving. If the
standard menu item is a combination of at least two standard menu
items, this disclosure shall, based upon all possible combinations
for that standard menu item, include both the minimum amount of
calories for the calorie count information and the maximum amount of
calories. If there is only one possible total amount of calories,
then this total shall be disclosed.
   (f) The nutritional information and calorie content information
required by this section shall be determined on a reasonable basis. A
reasonable basis determination of nutritional information and
calorie content information shall be required only once per standard
menu item, provided that portion size is reasonably consistent and
the food facility follows a standardized recipe and trains to a
consistent method of preparation.
   (g) (1) Every brochure provided pursuant to this section shall
include the statement: "Recommended limits for a 2,000 calorie daily
diet are 20 grams of saturated fat and 2,300 milligrams of sodium."
   (2) Menus and menu boards may include a disclaimer that indicates
that there may be variations in nutritional content across servings,
based on variations in overall size and quantities of ingredients,
and based on special ordering.
   (h) This section shall not be construed to create or enhance any
claim, right of action, or civil liability that did not previously
exist under state law or limit any claim, right of action, or civil
liability that otherwise exists under state law. The only enforcement
mechanism of the section is the local enforcement agency.
   (i) This section shall not be construed to preclude any food
facility from voluntarily providing nutritional information in
addition to the requirements of this section.
   (j) To the extent consistent with federal law, this section, as
well as any other state law that regulates the disclosure of
nutritional information, is a matter of statewide concern and
occupies the whole field of regulation regarding the disclosure of
nutritional information by a food facility. No ordinance or
regulation of a local government shall regulate the dissemination of
nutritional information by a food facility. Any ordinance or
regulation that violates this prohibition is void and shall have no
force or effect.
   (k) Commencing July 1, 2009, a food facility that violates this
section is guilty of an infraction, punishable by a fine of not less
than fifty dollars ($50) or more than five hundred dollars ($500),
which may be assessed by a local enforcement agency. However, a food
facility may not be found to violate this section more than once
during an inspection visit. Notwithstanding Section 114395, a
violation of this section is not a misdemeanor.
   (l) If any provision of this section, or the application thereof,
is for any reason held invalid, ineffective, or unconstitutional by a
court of competent jurisdiction, the remainder of this section,
shall not be affected thereby, and to this end, the provisions of
this section are severable. 
   SEC. 3.    Section 114094 is added to the  
Health and Safety Code   , to read:  
   114094.  (a) A food facility subject to Section 343(q)(5)(H) of
Title 21 of the United States Code or subject to this section as it
read on July 1, 2011, shall comply with the requirements of that
section of the United States Code and the regulations adopted
pursuant thereto.
   (b) Notwithstanding the Sherman Food, Drug, and Cosmetic Law (Part
5 (commencing with Section 109875) of Division 104), and to the
extent permitted by federal law:
   (1) The department shall administer and the local enforcement
agency shall enforce this section.
   (2) A violation of this section is an infraction, punishable by a
fine of not less than fifty dollars ($50) nor more than five hundred
dollars ($500), to be assessed by a local enforcement agency. A
second violation within a five year period from a prior violation
shall be punishable by a fine of not less than one hundred dollars
($100) nor more than one thousand dollars ($1,000). For a third or
subsequent violation within a five year period, the fine shall be not
less than two hundred fifty dollars ($250) nor more than two
thousand five hundred dollars ($2,500). A food facility shall not be
found to have committed a violation under this paragraph more than
once during an inspection visit. 
   SEC. 4.    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.  
  SEC. 2.    Section 114094 of the Health and Safety
Code is amended to read:
   114094.  (a) For purposes of this section, the following
definitions shall apply:
   (1) "Food facility" means a food facility that which is part of a
chain with at least 20 locations doing business under the same name,
regardless of the type of ownership of the locations, and that offers
for sale substantially the same menu items, except that a "food
facility" does not include the following:
   (A) Certified farmer's markets.
   (B) Commissaries.
   (C) Grocery stores, except for separately owned food facilities to
which this section otherwise applies that are located in the grocery
store. For purposes of this paragraph, "grocery store" means a store
primarily engaged in the retail sale of canned food, dry goods,
fresh fruits and vegetables, and fresh meats, fish, and poultry.
"Grocery store" includes convenience stores.
   (D) Licensed health care facilities.
   (E) Mobile support units.
   (F) Public and private school cafeterias.
   (G) Restricted food service facilities.
   (H) Retail stores in which a majority of sales are from a
pharmacy, as defined in Section 4037 of the Business and Professions
Code.
   (I) Vending machines.
   (2) "Calorie content information" means the total number of
calories per standard menu item, as that item is usually prepared and
offered for sale.
   (3) "Drive-through" means an area where a customer may provide an
order for and receive standard menu items while occupying a motor
vehicle.
   (4) "Menu board" means a posted list or pictorial display of food
or beverage items offered for sale by a food facility.
   (5) "Nutritional information" includes, but is not limited to, all
of the following, per standard menu item, as that item is usually
prepared and offered for sale:
   (A) Total number of calories.
   (B) Total number of grams of carbohydrates.
   (C) Total number of grams of saturated fat.
   (D) Total number of milligrams of sodium.
   (6) "Point of sale" means the location where a customer makes an
order.
   (7) "Standard menu item" means a food or beverage item offered for
sale by a food facility through a menu, menu board, or display tag
at least 180 days per calendar year, except that "standard menu item"
does not include any of the following:
   (A) A food item that is customized on a case-by-case basis in
response to an unsolicited customer request.
   (B) An alcoholic beverage, the labeling of which is not regulated
by the federal Food and Drug Administration.
   (C) A packaged food otherwise subject to the nutrition labeling
requirements of the federal Nutrition Labeling and Education Act of
1990.
   (D) A food item when served at a consumer self-service salad bar.
   (E) A food or beverage item when served at a consumer self-service
buffet.
   (8) "Reasonable basis" means any reasonable means recognized by
the federal Food and Drug Administration of determining nutritional
information, as well as calorie content information, for a standard
menu item, as usually prepared and offered for sale, including, but
not limited to, nutrient databases and laboratory analyses.
   (9) "Appetizer" means a food item that is generally served prior
to a food item that is generally regarded as the primary food item in
a meal. An "appetizer" includes a first course, starter, or small
plate.
   (10) "Dessert" means a food item that is generally served after a
food item that is generally regarded as the primary food item in a
meal. "Dessert" includes, but is not limited to, cakes, pastries,
pies, ice cream and food items that contain ice cream, confections,
and other sweets.
   (b) (1) Commencing July 1, 2009, to December 31, 2010, inclusive,
every food facility shall either disclose nutritional information as
required by paragraph (2), or comply with subdivision (c) during this
period of time.
   (2) (A) In order to comply with paragraph (1), a food facility
that does not provide sit-down service shall disclose the information
in a clear and conspicuous manner on a brochure that is made
available at the point of sale prior to or during the placement of an
order. A food facility that provides sit-down service shall provide
the nutritional information in a clear and conspicuous size and
typeface on at least one of the following:
   (i) A brochure available on the table.
   (ii) A menu next to each standard menu item.
   (iii) A menu, under an index section that is separate from the
listing of standard menu items.
   (iv) A menu insert.
   (v) A table tent on the table.
   (B) Notwithstanding subparagraph (A), a food facility that has a
drive-through area and uses a menu board to display or list standard
menu items at the point of sale shall, for purposes of the
drive-through area only, disclose the nutritional information in a
clear and conspicuous manner on a brochure that is available upon
request, and shall conspicuously display a notice at the point of
sale that reads: "NUTRITION INFORMATION IS AVAILABLE UPON REQUEST" or
other similar statement that indicates the disclosure of nutrition
information is available upon request.
   (c) (1) On and after January 1, 2011, every food facility that
provides a menu shall disclose calorie content information for a
standard menu item next to the item on the menu in a size and
typeface that is clear and conspicuous.
   (2) On and after January 1, 2011, every food facility that uses an
indoor menu board shall disclose calorie content information for a
standard menu item next to the item on the menu board in a size and
typeface that is clear and conspicuous.
   (3) On and after January 1, 2011, every food facility that uses a
display tag as an alternative to a menu or menu board to describe a
standard menu item that is displayed for sale in a display case
within the food facility shall disclose calorie content information
for that standard menu item on the display tag for that item in a
size and typeface that is clear and conspicuous.
   (4) On and after January 1, 2011, every food facility that has a
drive-through area and uses a menu board to display or list standard
menu items at the point of sale shall, for purposes of the
drive-through area only, disclose the nutritional information for
each standard menu item in a clear and conspicuous manner on a
brochure that is available upon request, and shall clearly and
conspicuously display a notice at the point of sale that reads:
"NUTRITION INFORMATION IS AVAILABLE UPON REQUEST" or other similar
statement that indicates the disclosure of nutrition information upon
request. If a food facility subject to this paragraph discloses
nutritional information in the manner described in subparagraph (B)
of paragraph (2) of subdivision (b), the food facility shall be
deemed to be in compliance with this paragraph.
   (d) For purposes of subdivision (c), the disclosure of calorie
content information on a menu or menu board next to a standard menu
item that is a combination of at least two standard menu items on the
menu or menu board, shall, based upon all possible combinations for
that standard menu item, include both the minimum amount of calories
for the calorie count information and the maximum amount of calories
for the calorie count information. If there is only one possible
total amount of calories, then this total shall be disclosed.
   (e) For purposes of subdivision (c), the disclosure of calorie
content information on a menu or menu board next to a standard menu
item that is not an appetizer or dessert, but is intended to serve
more than one individual, shall include both of the following:
   (1) The number of individuals intended to be served by the
standard menu item.
   (2) The calorie content information per individual serving. If the
standard menu item is a combination of at least two standard menu
items, this disclosure shall, based upon all possible combinations
for that standard menu item, include both the minimum amount of
calories for the calorie count information and the maximum amount of
calories. If there is only one possible total amount of calories,
then this total shall be disclosed.
   (f) The nutritional information and calorie content information
required by this section shall be determined on a reasonable basis. A
reasonable basis determination of nutritional information and
calorie content information shall be required only once per standard
menu item, provided that portion size is reasonably consistent and
the food facility follows a standardized recipe and trains to a
consistent method of preparation.
   (g) (1) Every brochure provided pursuant to this section shall
include the statement: "Recommended limits for a 2,000 calorie daily
diet are 20 grams of saturated fat and 2,300 milligrams of sodium."
   (2) Menus and menu boards may include a disclaimer that indicates
that there may be variations in nutritional content across servings,
based on variations in overall size and quantities of ingredients,
and based on special ordering.
   (h) This section shall not be construed to create or enhance any
claim, right of action, or civil liability that did not previously
exist under state law or limit any claim, right of action, or civil
liability that otherwise exists under state law. The only enforcement
                                                mechanism of the
section is the local enforcement agency.
   (i) This section shall not be construed to preclude any food
facility from voluntarily providing nutritional information in
addition to the requirements of this section.
   (j) To the extent consistent with federal law, this section, as
well as any other state law that regulates the disclosure of
nutritional information, is a matter of statewide concern and
occupies the whole field of regulation regarding the disclosure of
nutritional information by a food facility. No ordinance or
regulation of a local government shall regulate the dissemination of
nutritional information by a food facility. Any ordinance or
regulation that violates this prohibition is void and shall have no
force or effect.
   (k) Commencing July 1, 2009, a food facility that violates this
section is guilty of an infraction, punishable by a fine of not less
than fifty dollars ($50) or more than five hundred dollars ($500),
which may be assessed by a local enforcement agency. However, a food
facility may not be found to violate this section more than once
during an inspection visit. Notwithstanding Section 114395, a
violation of this section is not a misdemeanor.
   (l) If any provision of this section, or the application thereof,
is for any reason held invalid, ineffective, or unconstitutional by a
court of competent jurisdiction, the remainder of this section,
shall not be affected thereby, and to this end, the provisions of
this section are severable.  
  SEC. 3.    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.