Legislature(2003 - 2004)
04/23/2004 08:10 AM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 378-FOOD, DRUGS, COSMETICS, CERTAIN DEVICES
REPRESENTATIVE BILL WILLIAMS, co-chair of the House Finance
Committee, sponsor of HB 378, told members that he has sat on
the House Finance subcommittee on the Department of
Environmental Conservation (DEC) for the last six years. One
thing he has continually heard during that time is that DEC's
food inspection program could sustain no more budget cuts and
continue to do inspections. Restaurant and bar owners complain
about the high fees they are paying; those fees were originally
$50 per year and are now about $450 per year, yet fewer
inspections are being done. The waitlist for an inspection is 18
months to two years. Unaware that the Alaska Constitution
requires the legislature to provide for the protection of the
public health, he asked the administration to discontinue the
service three years ago since people were paying for a service
they were not getting. That administration refused. When the
current administration came in, he again asked that food
inspection program be discontinued and was told it could not do
so because of the constitutional requirement.
REPRESENTATIVE WILLIAMS said that HB 378 will require DEC to
inspect for unsafe holding temperatures, inadequate cooking,
food from unsafe sources, contaminated equipment, and poor
personal hygiene. DEC has set up a program that allows facility
owners to do the inspections, which DEC will monitor. He said he
hopes the food inspection program fees decrease as a result of
HB 378.
COMMISSIONER ERNESTA BALLARD, DEC, told members that HB 378 will
give DEC the statutory authority to run a new program to replace
its under-funded and failing consultative inspection program,
which is simply inadequate to the scope and size of Alaska. Over
the last two decades, DEC's best performance has been to inspect
60 percent of the high-risk restaurants in the state once per
year. It is important to acknowledge that the current inspection
program is not a regulatory program and does not achieve the
protection or relationship that DEC maintains with all of its
other regulated industries. HB 378 will replace the outdated and
failed program with an adequately funded and comprehensive
regulatory program that is modeled after successful programs. It
will work because it addresses the three, well-documented causes
of food borne illness: poor personal hygiene, inadequate
attention to temperature and cooking procedures, and inadequate
training. The consequences of failure in these three areas are
unacceptable. Illness and death from contaminated food is the
direct result of an incident of poor performance and is not
accidental. DEC knows how to prevent contamination and the
spread of infection. She reminded members that an outbreak
recently occurred in McGrath during the Iditarod and followed
the race down the trail. Before the mushers arrived in Nome, 78
cases of Norovirus were documented. The Division of
Environmental Health took precautionary measures so that there
was not a single outbreak in Nome.
COMMISSIONER BALLARD explained that the new program relies on
three elements: training and certification of a knowledgeable
workforce; managing risks and food handling through standard
operating procedures; and enforcement. The failed program was
designed for the pre-World War II era, when 20 million meals
were served in restaurants per day nationwide. Today, the
American Restaurant Association estimates 70 billion meals will
be served in restaurants every day nationwide.
SENATOR OGAN asked if any businesses that serve food will be
exempted, such as a remote fishing lodge or a guide out in the
field who serves meals.
MS. KRISTIN RYAN, Director of the Division of Environmental
Health, DEC, told Senator Ogan that the division has not yet
studied that level of detail in determining how it will
implement the new food safety system. The fundamental concept of
the program is that the responsibility for safe food handling
will lie with the owner/operator and food handler, since those
people will be serving the food year-round. The program has an
advisory board of regulated industry and other members who have
been helping to design the framework of the new program. Once
DEC is ready to promulgate regulations, it will address the
finer details of implementation using a process called
negotiated rule making. In that process, industry participants
will sit down with the division and help design the regulations
so that they address the problems without creating an undue
burden on the industry.
SENATOR OGAN noted that at a small lodge, workers wear many hats
and often take turns as the chef. He said he would like to see
an exemption for small, remote, family-run businesses, and for
guides.
MS. RYAN said DEC does not intend to use the new system on any
facilities that aren't already being regulated. Therefore,
temporary food service providers, operators at fairs, or smaller
camps will not fall under the new system as they are not
regulated now. She maintained that DEC is only interested in the
large businesses that it currently regulates.
SENATOR OGAN asked where that is written in the bill.
MS. RYAN said it is not written in the bill but is in DEC's
current regulations.
CHAIR SEEKINS asked what DEC's current regulations say about
size.
MS. RYAN said the current regulations are very complex and have
about 15 different categories of facilities. She explained that
the requirements for a temporary food service permit at a fair
would not change with the new system. DEC provides two-hours of
training for those permits.
CHAIR SEEKINS asked if all of the people engaged in food
preparation during a fair must be trained, such as a Girl Scout
troop, or if only the supervisor is trained.
MS. RYAN thought only the owner and operator would be trained
but offered to get back to Chair Seekins with the details.
COMMISSIONER BALLARD pointed out that the situations that he and
Senator Ogan have described represent a very small percent of
the food delivered to the public in Alaska daily. DEC's
obligation is to focus on the year-round restaurant industry.
DEC's regulations for sewage treatment, drinking water, food
safety, and waste disposal are all capable of accommodating
seasonal, camp, or itinerant situations. She noted that DEC
deals with those situations regularly and in a way that works
for both parties. She repeated the vast majority of food service
businesses are in business on a regular basis and deal with
employees who must be trained.
CHAIR SEEKINS said DEC's intent sounds good but he was asking
because if HB 378 passes, businesses will be subject to
additional penalties under the Unfair Trade Practices and
Consumer Protection Act, which can be very severe.
SENATOR OGAN added that during his years as a legislator, he has
heard a number of businesses complain about the food inspection
program.
COMMISSIONER BALLARD said DEC is fully aware of the complaints
about the existing program and is not proud of that program. DEC
does not believe the existing program serves industry, the
consumer, the legislature, or the administration, so it is
proposing a new system for its replacement.
8:35 a.m.
SENATOR FRENCH said the debate on this bill in the House
centered around the fact that the state is losing an inspection
process and gaining a training program. He noted that while
people acknowledge that better inspection efforts could be made,
they are reluctant to do away with inspectors completely. He
questioned whether it makes sense to maintain some overlap until
the public is confident in the new program.
COMMISSIONER BALLARD said there will be a period of overlap. DEC
knows it must pace the change so that it will work in the field.
New regulations will take several years to write, and she does
not expect the new program to be fully functional until 2006.
During that period of time, DEC will work with industry to deal
with the transitional issues. She emphasized that DEC will not
be abandoning its presence in the field; it will shift to
compliance and enforcement. The field itself will be better
prepared by virtue of a robust training program and required
standard operating procedures, with self monitoring and
documentation.
MS. RYAN maintained that DEC does not intend to quit doing
inspections. It will maintain its same level of inspections but
it will no longer rely only on inspections. It will be adding to
its program.
CHAIR SEEKINS noted that Senator Therriault joined the
committee.
SENATOR OGAN asked for an explanation of Section 12.
CHAIR SEEKINS pointed out that Section 12 is the Unfair Trade
Practices and Consumer Protection Act provision, which gives DEC
more enforcement power.
MS. RYAN said DEC added that change because it is often asked to
enforce labeling violations that are not a food safety issue.
For example, local producers were concerned that Budweiser tried
to market a beer that looked like it was made in Alaska and
would compete with Alaskan beers. DEC feels that is not a safety
issue; it is a consumer protection matter. HB 378 will allow DEC
to share enforcement with the Department of Law.
CHAIR SEEKINS indicated that section would apply to food safety
issues if someone wanted to prosecute.
SENATOR OGAN asked how Section 13, pertaining to organic foods,
would be enforced.
MS. RYAN said the Division of Agriculture will be enforcing the
Organic Food Labeling Act under a similar section in its own
statute. It will be going after the certifications from the Food
and Drug Administration to implement it.
COMMISSIONER BALLARD added that the principle inspection and
enforcement functions will have to do with whether the food
product has been certified as organic, and not with testing the
product itself. She noted that few food producers in Alaska
have been certified as organic, but she expects more
certifications in the future.
CHAIR SEEKINS said the legislature is taking a big leap of faith
with the language on page 2 in that it must trust that DEC will
not unnecessarily restrict businesses.
COMMISSIONER BALLARD said it makes DEC nervous that rules that
are simple to understand and implement may not be available for
lack of training and standard operating procedures in licensed
establishments that are serving food to the public. She repeated
that food borne illness is not an accident - it is an incident
of poor performance. DEC believes it can deliver the protection
required by the Constitution with this program, which has been
tested elsewhere in the country. She pointed out that Alaska is
the only state that is not delivering health inspections at the
county or lower health department level.
CHAIR SEEKINS said that is what the legislature needs to be
assured of. The legislature's intent is to allow DEC to train
and assist people to perform in a safe manner, not to impose
draconian methods.
COMMISSIONER BALLARD said a year ago, DEC conducted an
inspection at a supermarket deli in Kodiak. All appeared to be
fine, however within two weeks, the operator notified DEC that
an employee she had sent to the hospital was diagnosed with
hepatitis. The division took 500 inoculations to Kodiak at great
expense to the state and difficulty and inoculated 496 people
who had purchased food from that operator; no one contracted
hepatitis. She said hepatitis changes one's quality of life for
life. She believes that is one of the fundamental core
responsibilities that the Constitution gave to the legislature.
DEC cannot continue to operate a program where its inspections
achieve nothing. She believes the new program would have
prevented that incident from occurring.
SENATOR THERRIAULT asked if DEC will have the latitude to accept
an inspection and training program offered by a franchise in
lieu of DEC's program.
MS. RYAN pointed out that even restaurant chains have
significant problems and, because they serve so many people,
they are a greater risk. DEC is currently proposing that a
person get a food handler card, which will require taking a
test. Therefore, if the company provides training, that will
help the employee pass the test faster. DEC will offer the
training on-line, free of cost. The applicant can print the
booklet off of the Internet and then take a written test. She
noted that most large chains require their managers to be
certified in a nationally accredited program. DEC will accept
that certification.
COMMISSIONER BALLARD added that one aspect of the new program is
that in addition to the training and certification, DEC expects
the level of attention to standard operating procedures to
increase because DEC will require it to be documented. She
likened those procedures to those used by airline pilots, who
check their instruments before every take-off and document
readings.
CHAIR SEEKINS took public testimony.
MS. ALICIA [INDISC.] from Anchorage commented about additional
enforcement powers under Section 12.
SENATOR THERRIAULT moved HB 378 from committee with individual
recommendations and its attached fiscal notes.
CHAIR SEEKINS announced that without objection, the motion
carried.
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