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 HB 378 will replace the outdated and failed program with an adequately funded and comprehensive regulatory program that is modeled after successful programs.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.