Legislature(2003 - 2004)

05/07/2004 09:07 AM FSH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 282 - PREPARED FOOD:WILD/FARMED FISH DISCLOSURE                                                                            
                                                                                                                                
Number 0037                                                                                                                     
                                                                                                                                
CHAIR SEATON announced  that the only order of  business would be                                                               
CS  FOR  SENATE  BILL  NO.  282(RES), "An  Act  relating  to  the                                                               
identification   of  finfish   in  food   products  and   to  the                                                               
misbranding  of   food  products  consisting  of   or  containing                                                               
finfish."                                                                                                                       
                                                                                                                                
Number 0060                                                                                                                     
                                                                                                                                
SENATOR KIM  ELTON, Alaska State Legislature,  sponsor by request                                                               
of the  Joint Legislative Salmon  Industry Task Force,  said that                                                               
SB 282 provides for disclosure similar  to what now occurs at the                                                               
grocery-store level  to take place  in restaurants,  that finfish                                                               
be identified on  the restaurant menu as to whether  it is farmed                                                               
or wild.   Most fish consumed at the retail  level is consumed in                                                               
restaurants  rather than  through  grocery store  purchases.   He                                                               
suggested  that the  bill addresses  a consumer  awareness issue,                                                               
and noted  that there  have been  a lot of  stories in  the press                                                               
recently  about   the  toxin  loads   of  farmed  fish   and  the                                                               
environmental concerns surrounding industrial fish farms.                                                                       
                                                                                                                                
SENATOR  ELTON   opined  that  the  proposed   change  will  give                                                               
consumers the  ability to chose  what type of fish  they consume,                                                               
and will  provide a  real boost to  Alaska's wild  fish industry.                                                               
He  noted that  the bill  only applies  to eating  establishments                                                               
that serve  the public; it  won't apply to  schools, correctional                                                               
facilities, or employer-provided eating establishments.                                                                         
                                                                                                                                
REPRESENTATIVE GUTTENBERG  referred to  page 4, lines  14-16, and                                                               
noted that  the definition of  wild fish includes  fish harvested                                                               
from a lake but not fish  that has been raised in captivity under                                                               
control for  their entire life.   He asked whether a  fish raised                                                               
in a lake could be considered "captive."                                                                                        
                                                                                                                                
SENATOR ELTON  said it could  but only in  the same sense  that a                                                               
fish harvested from the ocean  could be considered a "captive" of                                                               
its ocean environment.                                                                                                          
                                                                                                                                
REPRESENTATIVE  WILSON  suggested that  one  could  think of  the                                                               
language as  meaning that a  fish raised in  "man-made" captivity                                                               
could not be considered a wild fish.                                                                                            
                                                                                                                                
CHAIR SEATON  asked Senator Elton  to comment on  the [Department                                                               
of Conservation's] fiscal note.                                                                                                 
                                                                                                                                
SENATOR  ELTON said  he found  that  fiscal note  to be  somewhat                                                               
strange given  that there  is already  a labeling  requirement at                                                               
the grocery-store level, and so  agency staffing levels shouldn't                                                               
be impacted,  particularly since  most enforcement occurs  at the                                                               
consumer level -  that is, consumers questioning  where a product                                                               
comes  from.   He noted,  however,  that because  of the  funding                                                               
levels   provided  by   the   legislature,   the  Department   of                                                               
Environmental  Control  (DEC)  has  had  to  operate  under  very                                                               
constrained  budgets.   Notwithstanding  that  point, though,  he                                                               
said  that  he  expects  the  DEC to  comply  with  the  labeling                                                               
requirement  proposed  by SB  282  in  the  same way  it  already                                                               
complies  with  the  labeling requirement  at  the  grocery-store                                                               
level.   He acknowledged that  the department disagrees  with him                                                               
on this point.                                                                                                                  
                                                                                                                                
Number 0630                                                                                                                     
                                                                                                                                
KRISTIN  RYAN,   Director,  Division  of   Environmental  Health,                                                               
Department  of Environmental  Conservation (DEC),  explained that                                                               
the DEC's  fiscal note is  based on  the fact that  an additional                                                               
environmental health  technician will have  to be hired  in order                                                               
to  ensure  the  compliance  of  the  estimated  665  restaurants                                                               
impacted by the  proposed change.  These restaurants  will need a                                                               
significant amount  of technical  assistance.   Additionally, the                                                               
DEC has  estimated that approximately 70  establishments will not                                                               
comply and thereby engender enforcement action by the DEC.                                                                      
                                                                                                                                
MS.  RYAN  pointed  out  that  Senator  Elton's  assumption  that                                                               
instituting the proposed change will  be similar to what was done                                                               
with regard  to instituting labeling  at the  grocery-store level                                                               
is  inaccurate  because  that  change   was  not  mandatory;  the                                                               
existing statute  uses the word, "may"  - not "shall" -  and thus                                                               
the DEC does not enforce  labeling at the grocery-store level nor                                                               
did it  promulgate regulations.   The change proposed by  SB 282,                                                               
however,  requires the  DEC to  enforce the  labeling requirement                                                               
and to promulgate regulations.                                                                                                  
                                                                                                                                
MS.  RYAN,   in  response  to   questions,  predicted   that  the                                                               
restaurants  impacted  by  SB  282  will  require  assistance  in                                                               
identifying  the   source  of  their   fish,  in   relaying  that                                                               
information, and  in complying, generally, with  the new labeling                                                               
requirement.  She  explained that if SB 282 passes,  the DEC will                                                               
inform restaurants of the new  requirements, and then, when it is                                                               
time  to  draft  regulations,   will  provide  public  notice  to                                                               
interested  parties.   She pointed  out  that interested  parties                                                               
will  get  an  opportunity  to  comment  on  proposed  regulation                                                               
changes during the regulation drafting process.                                                                                 
                                                                                                                                
MS. RYAN in response to  further questions, said that the "shall"                                                               
on page  3, line  21, puts  the onus  on the  DEC to  ensure that                                                               
restaurants  comply with  the change  proposed  by SB  282.   She                                                               
opined  that one  of  the benefits  of  the existing  legislation                                                               
regarding  labeling  at  the  grocery-store   level  is  that  it                                                               
"established what the  definition would be ...  [and] gave people                                                               
the opportunity to use it as a marketing tool."                                                                                 
                                                                                                                                
REPRESENTATIVE WILSON  characterized SB 282  as a good  bill, and                                                               
said she  wished she'd sponsored  it.   She opined that  the word                                                               
"shall" should stay in the bill.                                                                                                
                                                                                                                                
CHAIR SEATON agreed.                                                                                                            
                                                                                                                                
Number 1074                                                                                                                     
                                                                                                                                
CHERYL  SUTTON, Staff  to the  Joint Legislative  Salmon Industry                                                               
Task Force, Alaska State Legislature,  agreed, adding, "This is a                                                               
great bill."   She relayed,  however, that the  Joint Legislative                                                               
Salmon Industry  Task Force does  not view the DEC's  fiscal note                                                               
as warranted, and went on to say:                                                                                               
                                                                                                                                
     I go to  restaurants, I always ask ...  where this fish                                                                    
     comes   from.     I  think   it's   incumbent  on   any                                                                    
     establishment to know where their  seafood comes from -                                                                    
     who supplies it,  and what species it  is, whether it's                                                                    
     wild,  whether its  farmed  - and  it's  part of  their                                                                    
     marketing for their own establishment.                                                                                     
                                                                                                                                
REPRESENTATIVE  WILSON  asked  Ms.   Ryan  whether  the  DEC  has                                                               
considered simply adding the proposed  requirement to the list of                                                               
all the things it checks on during restaurant inspections.                                                                      
                                                                                                                                
MS.  RYAN said  that  that  has been  considered.   The  problem,                                                               
however, is  that due to  significant budgetary cuts, the  DEC no                                                               
longer  has  the  staff  to   take  on  additional  work  without                                                               
hindering its ability to do  what it is actually responsible for,                                                               
which is ensuring that food is  safe to eat.  The proposed change                                                               
is not one  that involves a safety issue, and  so the DEC doesn't                                                               
feel it's  appropriate to take  time out of its  existing staff's                                                               
schedule  to   ensure  compliance  with  the   proposed  labeling                                                               
requirement.    That  is  why  the  DEC's  fiscal  note  includes                                                               
additional staff and  resources.  She concluded:   "If the fiscal                                                               
note is eliminated, I think I  would be forced to use enforcement                                                               
discretion and not implement this legislation."                                                                                 
                                                                                                                                
REPRESENTATIVE GUTTENBERG  asked whether  the DEC  has considered                                                               
simply contracting  out the enforcement  aspect of the  bill, for                                                               
example, to  the United Fishermen's  Association (UFA);  then all                                                               
the DEC  would need to  do is establish  a hotline and  follow up                                                               
with inspections if complaints are received.                                                                                    
                                                                                                                                
MS. RYAN said  that regardless of whom the DEC  contracts out the                                                               
enforcement work  to, it will  still require additional  work and                                                               
funding from the  DEC.  In response to a  question, she said that                                                               
if she  chose to not implement  the proposed change, even  if the                                                               
DEC received  a call  that someone was  not complying,  she would                                                               
not enforce  the change or  follow up on  the call.   She pointed                                                               
out  that  she has  the  authority  to use  discretion  regarding                                                               
enforcement, and  so if she  feels that there are  more important                                                               
issues  to  investigate and  enforce,  she  will have  her  staff                                                               
address those things instead.                                                                                                   
                                                                                                                                
Number 1305                                                                                                                     
                                                                                                                                
CHAIR  SEATON said  he appreciates  Ms.  Ryan's points  regarding                                                               
budgetary constraints  and enforcement discretion,  but suggested                                                               
that the  bill puts the  onus on  restaurants to comply  and will                                                               
encourage  consumers to  address  labeling  issues directly  with                                                               
restaurant owners.  He went on to say:                                                                                          
                                                                                                                                
     I  think that  we  would  fully like  you  to use  your                                                                    
     discretion  and not  incur  additional  expenses, so  I                                                                    
     think  that we  will look  at that  and your  testimony                                                                    
     there that  you would  use your  discretion and  not go                                                                    
     into an  enforcement mode  on this  if it  was adopted.                                                                    
     And  so we'll  take that  as being  the opportunity  to                                                                    
     consider a zero fiscal note  based on your testimony of                                                                    
     your  discretion not  to enforce  this.   So thank  you                                                                    
     very much.                                                                                                                 
                                                                                                                                
MS. RYAN replied:                                                                                                               
                                                                                                                                
     Unfortunately,  even if  it goes  through  with a  zero                                                                    
     fiscal  note,  the public  will  feel  that we  have  a                                                                    
     responsibility  to enforce  that legislation,  and it's                                                                    
     very difficult  to turn people  away when  they contact                                                                    
     us saying  "You have the  ability to do this,  you have                                                                    
     the responsibility  to do this,  why don't you  do it?"                                                                    
     And to say, "We just don't  have the funding to do it,"                                                                    
     is a difficult situation to put is in.                                                                                     
                                                                                                                                
CHAIR SEATON said  he appreciates that point,  but suggested that                                                               
she  refer  such  people  to   the  House  Special  Committee  on                                                               
Fisheries as having told her  to allocate her resources where she                                                               
deems most appropriate.                                                                                                         
                                                                                                                                
REPRESENTATIVE  GARA suggested  that all  parties are  "right" on                                                               
the fiscal note issue.                                                                                                          
                                                                                                                                
REPRESENTATIVE WILSON, mentioning that  she has heard many things                                                               
about the  safety of  eating farmed  fish, opined  that requiring                                                               
labeling  whether fish  is  wild  or farmed  is  a public  safety                                                               
issue.                                                                                                                          
                                                                                                                                
CHAIR  SEATON, after  ascertaining  that no  one  else wished  to                                                               
testify, closed public testimony on SB 282.                                                                                     
                                                                                                                                
Number 1620                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS  made  a  motion to  "zero"  the  [DEC's]                                                               
fiscal note.  There being no objection, it was so ordered.                                                                      
                                                                                                                                
SENATOR ELTON relayed:                                                                                                          
                                                                                                                                
     I do want  to assure the committee  and especially [Ms.                                                                    
     Ryan],  whom I  have been  able to  work with  on this,                                                                    
     that  ... I  would hope  she would  keep track.  ... My                                                                    
     best guess  is that  if restaurant owners  are notified                                                                    
     that this  is the law and  it must occur, and  yet fail                                                                    
     to follow  the law,  ... I would  hope that  [Ms. Ryan]                                                                    
     and  [the]   DEC  would  let   me  know,   because  I'm                                                                    
     committed,  in the  next budget  cycle, if  in fact  we                                                                    
     find it necessary  to do enforcement, ...  to help them                                                                    
     get the money to do it.                                                                                                    
                                                                                                                                
SENATOR  ELTON added  that he  would  come to  the House  Special                                                               
Committee on Fisheries first to ask for help.                                                                                   
                                                                                                                                
CHAIR SEATON remarked:                                                                                                          
                                                                                                                                
     Well,  I  think the  whole  committee  here is  nodding                                                                    
     their  heads in  agreement that  that's what  we think.                                                                    
     And   we  think   that  whenever   they're  going   for                                                                    
     inspections it  ought to be  a flyer or  something that                                                                    
     they  leave  with  ... each  restaurant  so  that  each                                                                    
       restaurant knows ... what they're required to do,                                                                        
     reminded what it is to do, without incurring a fiscal                                                                      
     note on that.                                                                                                              
                                                                                                                                
REPRESENTATIVE  GUTTENBERG  suggested  that the  DEC  "build  the                                                               
calculation  of enforcement  into ...  the restaurant  inspection                                                               
report card."                                                                                                                   
                                                                                                                                
Number 1744                                                                                                                     
                                                                                                                                
REPRESENTATIVE  WILSON  moved  to  report CSSB  282(RES)  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
zero fiscal notes.   There being no objection,  CSSB 282(RES) and                                                               
the accompanying zero  fiscal notes were reported  from the House                                                               
Special Committee on Fisheries.                                                                                                 

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