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AB-234 Food: sale.(2015-2016)

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Assembly Bill No. 234
CHAPTER 616

An act to amend Sections 113789 and 114376 of the Health and Safety Code, relating to food.

[ Approved by Governor  October 08, 2015. Filed with Secretary of State  October 08, 2015. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 234, Gordon. Food: sale.
Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for retail food facilities and provides for the enforcement of those standards by local health agencies and by the State Department of Public Health, as specified. Under existing law, unless a local jurisdiction adopts an ordinance prohibiting the activity, a community food producer or gleaner may sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, to a permitted restaurant, or a cottage food operation if the community food producer meets specified requirements. Existing law authorizes a local city or county health enforcement office to require a community food producer or gleaner to register with the city or county to provide specified information. A violation of the code is a crime.
This bill would remove the local ordinance prohibition exception, and would authorize a community food producer to sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, a permitted food facility, or a cottage food operation, and authorize a gleaner to sell or provide the same food produced by a community food producer directly to the public without registration or to donate the same food produced by a community food producer to a food bank or food kitchen without registration, if specified requirements are met. The bill would prohibit a local city or county health enforcement office, unless otherwise authorized by a local ordinance adopted by a local jurisdiction, from requiring a community food producer to register with the city or county or to meet additional requirements if the community food producer meets any of the specified conditions. The bill would require a community food producer or gleaner that sells or provides the above-mentioned food directly to the public, and a food bank or food kitchen that receives the same food donated by a community food producer or gleaner, pursuant to these provisions to retain records related to the sale, provision, or donation of food for 30 days, as specified. By expanding the definition of a crime, this bill would impose a state-mandated local program.
Existing law exempts from the definition of food facility premises operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted on premises controlled by the producer.
This bill would instead exclude from the definition of food facility an outlet or location, including, but not limited to, premises, operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted at an outlet or location controlled by the producer.
This bill would incorporate additional changes to Section 113789 of the Health and Safety Code, proposed by AB 143 and AB 226, that would become operative only if this bill and either or both of those bills are chaptered and become effective January 1, 2016, and this bill is chaptered last.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 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) A 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, except as provided in paragraph (13) of subdivision (c).
(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) An outlet or location, including, but not limited to, premises, operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted at an outlet or location controlled by the producer.
(7) A commercial food processing establishment 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, pretzels, or prepackaged food that is not potentially hazardous food is offered for onsite consumption.
(13) (A) An intermediate care facility for the developmentally disabled, as defined in subdivisions (e), (h), and (m) of Section 1250, with a capacity of six beds or fewer.
(B) A facility described in subparagraph (A) shall report any foodborne illness or outbreak to the local health department and to the State Department of Public Health within 24 hours of the illness or outbreak.
(14) A community food producer, as defined in Section 113752.

SEC. 1.1.

 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) A 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, except as provided in paragraph (13) of subdivision (c).
(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, or premises set aside by a beer manufacturer, as defined in Section 25000.2 of the Business and Professions Code, and in the regulations adopted pursuant to those sections, that comply with Section 118375, regardless of whether there is a charge for the wine or beer tasting, if no other beverage, except for bottles of wine or beer and prepackaged nonpotentially hazardous beverages, is offered for sale or for onsite consumption and no food, except for crackers, pretzels, or prepackaged food that is not potentially hazardous food is offered for sale or for onsite consumption.
(6) An outlet or location, including, but not limited to, premises, operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted at an outlet or location controlled by the producer.
(7) A commercial food processing establishment 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) (A) An intermediate care facility for the developmentally disabled, as defined in subdivisions (e), (h), and (m) of Section 1250, with a capacity of six beds or fewer.
(B) A facility described in subparagraph (A) shall report any foodborne illness or outbreak to the local health department and to the State Department of Public Health within 24 hours of the illness or outbreak.
(13) A community food producer, as defined in Section 113752.

SEC. 1.2.

 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) A 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, except as provided in paragraph (13) of subdivision (c).
(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.
(11) Fishermen’s markets.
(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) An outlet or location, including, but not limited to, premises, operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted at an outlet or location controlled by the producer.
(7) A commercial food processing establishment 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, pretzels, or prepackaged food that is not potentially hazardous food is offered for onsite consumption.
(13) (A) An intermediate care facility for the developmentally disabled, as defined in subdivisions (e), (h), and (m) of Section 1250, with a capacity of six beds or fewer.
(B) A facility described in subparagraph (A) shall report any foodborne illness or outbreak to the local health department and to the State Department of Public Health within 24 hours of the illness or outbreak.
(14) A community food producer, as defined in Section 113752.

SEC. 1.3.

 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) A 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, except as provided in paragraph (13) of subdivision (c).
(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.
(11) Fishermen’s markets.
(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, or premises set aside by a beer manufacturer, as defined in Section 25000.2 of the Business and Professions Code, and in the regulations adopted pursuant to those sections, that comply with Section 118375, regardless of whether there is a charge for the wine or beer tasting, if no other beverage, except for bottles of wine or beer and prepackaged nonpotentially hazardous beverages, is offered for sale or for onsite consumption and no food, except for crackers, pretzels, or prepackaged food that is not potentially hazardous food is offered for sale or for onsite consumption.
(6) An outlet or location, including, but not limited to, premises, operated by a producer, selling or offering for sale only whole produce grown by the producer or shell eggs, or both, provided the sales are conducted at an outlet or location controlled by the producer.
(7) A commercial food processing establishment 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) (A) An intermediate care facility for the developmentally disabled, as defined in subdivisions (e), (h), and (m) of Section 1250, with a capacity of six beds or fewer.
(B) A facility described in subparagraph (A) shall report any foodborne illness or outbreak to the local health department and to the State Department of Public Health within 24 hours of the illness or outbreak.
(13) A community food producer, as defined in Section 113752.

SEC. 2.

 Section 114376 of the Health and Safety Code is amended to read:

114376.
 (a) A community food producer may sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public, to a permitted food facility, or a cottage food operation if the community food producer meets all of the following requirements:
(1) Agricultural products shall be grown or produced in compliance with subdivision (b) of Section 113735.
(2) Agricultural products that are packaged shall have the package labeled with the name and address of the community food producer.
(3) Conspicuous signage shall be provided in lieu of a product label if the agricultural product is being sold by the community food producer on the site of production. The signage shall include, but not be limited to, the name and address of the community food producer.
(4) Best management practices, as described by the Department of Food and Agriculture, regarding small farm food safety guidelines on, but not limited to, safe production, processing, and handling of both nonpotentially hazardous and potentially hazardous foods.
(5) Egg production shall be limited to 15 dozen eggs per month.
(b) (1) A gleaner may sell or provide whole uncut fruits or vegetables, or unrefrigerated shell eggs, produced by a community food producer directly to the public without registration if the gleaner meets all of the requirements specified in subdivisions (a) and (d).
(2) A gleaner may donate whole uncut fruits or vegetables, or unrefrigerated shell eggs, produced by a community food producer to a food bank or food kitchen without registration if it meets both of the following requirements:
(A) Best management practices, as described by the Department of Food and Agriculture, regarding small farm food safety guidelines on handling of both nonpotentially hazardous and potentially hazardous foods.
(B) Record retention requirements specified in subdivision (d).
(c) Unless otherwise authorized by a local ordinance adopted by a local jurisdiction, a local city or county health enforcement office shall not require a community food producer to register with the city or county or meet requirements in addition to those required in subdivisions (a) and (d) if the community food producer meets any of the following conditions:
(1) Agricultural products are sold at the outlet or location, including, but not limited to, premises, controlled by the community food producer pursuant to paragraph (6) of subdivision (c) of Section 113789.
(2) Agricultural products are donated to a food bank or food kitchen that provides food at no cost to consumers.
(3) Agricultural products are sold in a food facility permitted by a federal, state, or local health agency.
(d) A community food producer or gleaner that sells or provides whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to the public pursuant to this section shall retain records related to the sale or provision of the food for 30 days, which shall include the type of food sold and the date of sale.
(e) A food bank or food kitchen that receives whole uncut fruits or vegetables, or unrefrigerated shell eggs, donated by a community food producer or gleaner pursuant to this section shall retain records related to the donation of the food for 30 days, which shall include the type of food received, the date of receipt, and the name and contact information of the community food producer or gleaner that donated the food.

SEC. 3.

 (a) Section 1.1 of this bill incorporates amendments to Section 113789 of the Health and Safety proposed by both this bill and Assembly Bill 143. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 113789 of the Health and Safety Code, (3) Assembly Bill 226 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 143, in which case Sections 1, 1.2, and 1.3 of this bill shall not become operative.
(b) Section 1.2 of this bill incorporates amendments to Section 113789 of the Health and Safety Code proposed by both this bill and Assembly Bill 226. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 113789 of the Health and Safety Code, (3) Assembly Bill 143 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 226 in which case Sections 1, 1.1, and 1.3 of this bill shall not become operative.
(c) Section 1.3 of this bill incorporates amendments to Section 113789 of the Health and Safety Code proposed by this bill, Assembly Bill 143, and Assembly Bill 226. It shall only become operative if (1) all three bills are enacted and become effective on or before January 1, 2016, (2) all three bills amend Section 113789 of the Health and Safety Code, and (3) this bill is enacted after Assembly Bill 143 and Assembly Bill 226, in which case Sections 1, 1.1, and 1.2 of this bill shall not become operative.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because 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.