In September 2013, the Federal Drug Administration (FDA) released information suggesting the presence of arsenic in rice. This week, Consumer Advocacy Group, Inc., a non-profit organization that files numerous Proposition 65 lawsuits every year, issued notices of violation alleging that companies—including grocers—violated California law by selling rice containing arsenic without a Prop 65 warning. Consumer Advocacy issued similar notices in late 2013 and may very well issue more in the near future.

Prop 65 requires businesses to place a warning on products containing chemicals known to the State of California to cause cancer or reproductive toxicity. California maintains a list of such chemicals, which numbers over 800 chemicals and includes arsenic. For more information on this list of chemicals, click here.

Unlike other consumer product safety regulations, private individuals and organizations, such as Consumer Advocacy, can enforce Prop 65. Indeed, Consumer Advocacy files multiple lawsuits a year with the intention of extracting settlements from companies in the targeted industry. Nonetheless, below are several defenses available in response to such a lawsuit as follows:

Safe Harbor Exception: Prop 65 provides for allowable levels of listed chemicals to exist in food products. According to the FDA, rice and rice products contained an average of 0.1 to 7.2 micrograms of inorganic arsenic. The Safe Harbor Level set by the Office of Environmental Health Hazard Assessment is 10 micrograms per day. If the FDA’s data is accurate, there may be a Safe Harbor Exception defense.

Naturally Occurring Defense: A chemical is “naturally occurring” if it is “a natural constituent of food, or if it is present in food solely as the result of absorption or accumulation of the chemical which is naturally present in the environment in which the food is raise, or grown, or obtained.” Cal. Code of Regs. Tit. 27 § 25501(a)(1). Arsenic is naturally found in soil and water and is absorbed by plants regardless of the growing practice. As a result, this defense is a feasible and colorable response to a Consumer Advocacy-issued Prop 65 notice.
Grocers may have received Consumer Advocacy-issued Prop 65 notices of violation. In this instance, the targeted product is rice. However, given the list of 800 chemicals on California’s Prop 65 list and over-zealous efforts of organizations like Consumer Advocacy, grocers can expect further Prop 65 notices and should be prepared to respond.

This article was authored by Melissa Thorme and Justin Delacruz, attorneys in Downey Brand LLP’s Food and Agriculture Practice. Melissa is a partner who practice focuses in the areas of water quality, wastewater, agricultural runoff, permitting, enforcement defense and agricultural law, including Prop 65 defense. She may be reached by email at [email protected]. Justin focuses his practice in the area of commercial litigation representing and advising food producers, processors and retailers. He may be reached by email at [email protected]. Melissa and Justin may be reached by phone at (916) 444-1000.

CGA member Northgate González Markets, which operates 38 supermarkets in Southern California, was the recipient of the 2014 “Ben Schwartz Retail Grocery Visionary Award” from Unified Grocers at a special awards dinner last night at Tamayo Restaurant in Los Angeles. This is the ninth year that Unified has presented the award to an outstanding independent retailer.

The annual award is named after Ben Schwartz, a former Chairman of the Board of Unified Grocers. It is an honor given to an independent retail grocer or grocery company that is a leader and innovator in the retail grocery industry. The award recognizes retailers who, by their practice and example, have consistently demonstrated initiative, creativity and leadership within their businesses and, in the process, have inspired others to think and act creatively and with passion in the grocery field. To be eligible, retailers must be — or have been — a member of Unified Grocers or one of its predecessor companies.

In presenting the award, Bob Ling, President and Chief Executive Officer, Unified Grocers, said that in addition to being an outstanding retailer, Northgate thrives because the González family have a strong set of values that define who they are and shapes everything they do.

“The award carries name of a true retail visionary. The idea behind it is to recognize someone in our retail community who exemplifies Ben Schwartz’s spirit, character and ultimately the vision that he demonstrated throughout his long career. We’re proud to give this award to the González family. Their passion toward customers and retailing is clearly evident as you walk through their stores,” Ling said. “Northgate González Markets is a great company and the best is yet to come.”

In accepting the 2014 Ben Schwartz Award, Northgate González Markets co-president Oscar González expressed his appreciation. “On behalf of my family, I want to thank you for honoring us tonight. This is a very special award for us. Ben has been a mentor to the family.”

In addition to the award that was presented to Northgate González Markets, a duplicate is on permanent display in the lobby of Unified’s headquarters building in Commerce, Calif. A plaque recognizing Northgate González Markets as the 2014 winner has been added to the permanent award.

A native of Joliet, Illinois, Bob Hermanns passed away on Feb. 10, in Long Beach, Calif.

A true food industry legend, Bob spent over 50 years in the food industry and for the past five years as Director of Food Industry Management Programs at the University of Southern California Marshall School of Business.

Bob, graduated from the USC Food Industry Management Program in 1967 and served the food industry in leadership roles with Jewel Food Stores in Chicago; Red Owl in Minneapolis; Lucky Stores in both Northern and Southern California; American Stores in Salt Lake City; Shopeaze, Inc. in Santa Clara; Weis Markets in Central Pennsylvania; Associated Grocers in Seattle; Encore & Associates in San Ramon and Park City Group in Park City, Utah. Bob Served on the Board of Directors of the WAFC during his years with Lucky Stores and Associated Grocers.

Bob is survived by his wife of 40 years, Carolyn, daughter and granddaughter, Stefanie & Sofia Stamires, and son Robert J. “Jeremy” Hermanns and daughter-in-law, Erika.

Plans are underway for a memorial service and the family is establishing a foundation to accept donations in lieu of flowers.

Those wishing to send condolences to Carolyn and family may do so at:
Carolyn Hermanns
4217 Cedar Avenue
Long Beach, CA 90807

Disposable plastic bags would be banned from grocery checkout stands in California and consumers would pay at least a dime for a paper or a sturdier, reusable plastic bag a under a compromise proposal negotiated by key legislators.

An attempt to pass a bill banning the bags failed last year amid opposition from plastic bag manufacturers and concerns that the move would eliminate jobs.

Senate Bill 270 seeks to temper some plastic industry opposition by providing $2 million from state recycling funds.

Plastic bag makers would be able to apply for grants to retrain their workers or re-engineer their operations to make reusable plastic bags that meet new criteria spelled out in the bill. Despite the sweetener, at least two major plastic bag makers said they will not support the new bill.

The legislation is a joint effort by Sen. Alex Padilla – the Los Angeles Democrat who authored last year’s failed attempt – and two of his colleagues who killed that bill, Sen. Kevin de León, D-Los Angeles, and Sen. Ricardo Lara, D-Bell Gardens.

De León and Lara have plastic bag factories in their districts and said last year that Padilla’s SB 405 would have hurt their working-class constituents. But they took heat for their votes from environmentalists who say too many plastic bags litter California streets, foul its beaches and harm wildlife.

“We need to find a way to balance the health of the planet with the preservation of people’s livelihoods,” de León said. “This new bill, I believe, is a strong compromise.”

Padilla, De León and Lara engaged in intense conversations on the Senate floor this week. They plan to introduce their proposal today alongside labor and environmental leaders at the Command Packaging plant in Vernon, a bag maker whose owner is supporting the bill.

Under the proposal, only plastic bags that meet certain thresholds for containing recycled content and being strong enough for more than 125 uses would be available for sale in California. They would have to contain at least 20 percent recycled plastic, a bar that would go up over time to 40 percent, said Mark Murray, executive director of Californians Against Waste.

“We’re trying to develop a criteria for an evolving marketplace,” he said.

Consumers would pay a minimum 10-cent fee for every shopping bag, whether paper or plastic, though Murray said plastic bags that meet the new criteria likely will cost more than that.

He said 90 cities in California already ban plastic grocery bags and require a 10-cent fee for paper. The bill would let existing city regulations remain in place.

“What’s happening in those communities is that we’re seeing a reduction in paper bags,” Murray said. “The 10-cent charge is causing people not just to switch from plastic to paper, but to bring their own bags.”

Grocery stores support the idea of charging for bags; those who make them, however, have a problem with it. Charging the bag fee amounts to a giveaway to the grocery stores, which currently absorb the cost of bagging customers’ purchases, said Catherine Browne, manager of Crown Poly, a bag maker in Huntington Park.

“The money is going to the grocers – it’s going to the grocers on the back of the consumers,” Browne said.

She said she hopes to see changes to the bill that would take the money collected from the bag fees away from the store owners and instead direct it to a “public purpose.”

The bill will face stiff opposition from the nation’s largest plastic bag maker, Hilex Poly, which has contributed more than $115,000 to California politicians since 2011.

“If this bill were to pass, it would be devastating to the 2,000 workers who are participating in the manufacturing of recyclable plastic bags in California,” said Mark Daniels, a senior vice president at Hilex Poly and chairman of an industry association.

He said $2 million is far too little to help manufacturers change their product.

“A $2 million fund to retrain or retool a factory is not at all realistic,” Daniels said.

Padilla said he expects Daniels’ plastic bag association to put up a fight. But he said the changes sweeping across California cities and counties will help build support for a statewide measure.

“I think that it’s a huge help that since last year, literally dozens more cities have adopted ordinances at the local level, either to implement phase-outs of their own or to support the state policy,” Padilla said.

Despite the many local bag bans in California, Daniels said no state in the nation has passed a statewide ban on plastic bags.

“We have had discussions in Washington and Oregon, and both those statehouses have rejected them,” Daniels said.

In other states, he said, “these things don’t even get out of committee.”

De León countered that California is a leader in environmental policy and that the bill isn’t meant to suit the needs of Hilex Poly, which is based in South Carolina.

“We worked tirelessly to make sure that those California – and that’s the key word here – manufacturing facilities will have resources,” he said.

The requirements in the bill would take effect at large grocery stores in July 2015 and at pharmacies and liquor stores in July 2016.

Reprinted from The Sacramento Bee (1/24/2014)

The Press Democrat

With council votes this week, Santa Rosa and Rohnert Park join a growing list of California cities that outlaw plastic carryout bags.

About 100 cities and counties, with a combined population of more than 12 million people, have enacted bag laws. Still more are on the way.

The direction is unmistakable — single-use bags are going the way of leaded fuel and other products that pose environmental hazards or needlessly clog landfills.

Plastic bags do both.

Californians use about 14 billion of them every year, but fewer than 5 percent get recycled. Most bags get tossed in the rubbish or become litter. Plastic bags account for 2 percent of the waste stream and $25 million a year in collection and disposal costs, according to a legislative analysis. Discarded bags are a major source of the plastic polluting the world’s oceans.

From Arcata to Solana Beach, local governments have concluded that the best solution is banning plastic carryout bags.

With this week’s votes, all nine Sonoma County city councils and the Board of Supervisors have enacted ordinances. By Sept. 1, single-use plastic bags will disappear from local supermarkets, convenience stores and many other retailers.

Similar rules already are in effect in Fort Bragg, Ukiah and unincorporated Mendocino County.

But a patchwork of local rules — a possibility locally with Santa Rosa opting out of a countywide approach — is confusing for consumers and a nuisance for retailers. This is a statewide issue, and it ought to be addressed as such.

Bag bills failed in 2010 and 2012. Of the three bills introduced last year, one reached the state Senate floor, where it fell two votes short — with four senators abstaining.

The author, state Sen. Alex Padilla of Los Angeles, says he’ll try again this year. His biggest obstacle may be fellow Democrats worried that a ban would cost jobs in Los Angeles-area bag factories.

That’s probably true, but the numbers peddled by industry lobbyists are overblown. Consider an independent estimate prepared for the Los Angeles City Council before it voted to ban plastic carryout bags. Net job loss in the city: 15. L.A.’s annual expenditure for picking up plastic bags: $2 million.
There are arguments against banning bags. They are convenient, and many are reused as wastebasket liners or to clean up pet waste. Produce bags, restaurant bags and other carryout bags exempted from these laws remain a litter problem.

The primary alternative — reusable bags — can harbor bacteria. Academic researchers found an increase in E. coli infections in San Francisco after carryout bags were banned, and epidemiologists in Oregon traced a norovirus outbreak to a dirty bag. Washing bags is a simple solution, but another study found that 97 percent of people never do.

These problems are comparatively minor and easy to solve. The costs and environmental hazards associated with plastic bags are well known and widely publicized, and recycling is easier than ever. Regrettably, too many people don’t bother.

That’s why cities and counties across the state are banning carryout bags. More nuisance than convenience, they should be banned statewide.

Reprinted from The Press Democrat (1/17/2014)

California Governor Jerry Brown released his 2014 on January 9.

Read the Proposal »

A recent survey by the University of Florida shows consumers rank food safety near the top of their list of concerns, with 85 percent of respondents calling it extremely or highly important, trailing only the economy and health care.

But perhaps more significantly, the survey also found a great deal of confusion — and downright misinformation — about the relative safety of different foods.

For example, the survey found that 72 percent of those polled thought that fresh fruit and vegetables were safe while only about 60 percent felt the same way about canned fruits and vegetables.

In fact, canned and frozen fruits and vegetables are much safer than unwashed raw produce, according to Doug Archer, associate dean for research for UF/IFAS.

“The number of outbreaks of foodborne illness attributable to fresh produce has grown substantially in the last two decades to the point where the Centers for Disease Control and Prevention, and the U.S. Food and Drug Administration have become very concerned,” Archer said.

Bacteria downgraded

The survey also found more Floridians naming growth hormones, additives and preservatives as health risks than bacteria, when in fact, it is bacteria that can fairly quickly cause major foodborne diseases.

“I think findings like this are telling us that, while there are some areas where there is correspondence between what consumers know and the actual facts, there are some significant gaps,” said Tracy Irani, director of the UF/IFAS Center for Public Issues Education, or PIE Center, which led the study.

The online survey, conducted in October, reached 510 Florida residents, all 18 or older. The responses were weighted to balance geographic, age, gender, race and ethnicity data to ensure the information was representative of Florida’s population.

The study found that Floridians are not as concerned about genetically modified food, with fewer than half saying they worried that it would harm the environment or cause health problems.

But 52 percent approve of using genetic modification to help fight citrus greening, a disease that threatens the state’s $9 billion citrus industry.

Currently the only genetically engineered crops are field corn, soybean, cotton, canola, sugar beet, papaya and squash.

Kevin Folta, interim chair of UF’s horticultural sciences department, said the survey shows the need for more education about the benefits of genetically engineered food.

“There has never been a single case of harm to an animal or human eating an estimated 3 trillion meals in the last 17 years, since genetically engineered food became available in the marketplace,” Folta said. “The survey says that we need to be doing more in communicating the science to the public.”

Reprinted from Consumer Affairs (1/8/2014)

If you’re bracing yourself for a major storm, you’ve likely already made your trip to the grocery store to stock up in case of emergency. But how do you ensure the safety of food in your refrigerator and freezer during a power outage or flood? Below are some tips from the USDA to keep your food safe and your family healthy during a weather emergency.

Preparation:

• Fill Ziplock bags, empty soda bottles, and other plastic containers with water and freeze. Use these to keep items in the freezer, refrigerator, and coolers cold.
• Freeze items in your refrigerator that you do not need immediately such as meat, poultry, milk, and leftovers such as chili and soup. If you loose power, this will buy you some more time by keeping them at a food-safe temperature longer.
• Group items together in the freezer and refrigerator to help keep everything cooler longer. Think “safety in numbers”!
• Have coolers at the ready to be filled with ice packs, frozen items, and refrigerated perishables.
  If you’re preparing for a flood, relocate foods on the bottom shelves of your pantry to higher shelves or cabinets.

If the power goes out:

• Keep refrigerator and freezer doors closed as much as possible.
• The refrigerator will keep food safe for about 4 hours, if it is kept closed. A unopened freezer that is packed full will hold its temperature for 48 hours. If it is only half full, it will keep food safe for 24 hours.
• If the food has visible ice crystals, it is safe to be refrozen or cooked to eat. The same holds true for food that has been kept in a sealed freezer for several days without power. If there are still ice crystals, it is safe.
• The safest way to determine a food’s safety is to use a thermometer. If a food’s temperature registers at 40°F or below, it is safe.
• After 4 hours without power, discard all refrigerated perishables such as meat, poultry, fish, milk, eggs, soft cheeses, etc. NEVER taste an item to see if it’s still good. As the USDA says, “When in doubt, throw it out!”
• Here’s a VERY HANDY chart of foods that are perishable and non-perishable

If your kitchen and pantry is flooded:

• Discard food that is not in a waterproof container and may have come into contact with flood water – this includes food or supplies in cardboard boxes, juice/ milk/baby formula boxes, as well as home canned goods. Anything with a screw-cap, snap lid, pull top, and crimped cap is also not waterproof.
• Canned goods with punctures, swelling, deep dents, or extensive rusting should also be discarded.
• More tips and complete cleaning instructions to sanitize waterproof food containers and kitchen cookware and utensils.

Good luck and stay safe!

Reprinted from Parade (1/2/2014)

According to a recent Harris Interactive poll, 30% of respondents say the grocery industry is generally honest and trustworthy, while 24% think the packaged food industry should be more regulated by the government.

For the past decade, The Harris Poll has measured the percentage of Americans who perceive 19 large industries as “generally honest and trustworthy.” This year, this perception has dropped for 18 of the 19 industries, as overall U.S. adults seem to have lost trust in most of corporate America.

And, the only one that did not drop is tobacco companies, as just 3% of Americans say they normally would believe a statement from someone in that industry – same as it’s been for the past few years. At the other end of the spectrum, the most trusted industries are supermarkets – where three in ten (30%) say this industry is generally honest and trustworthy – and hospitals (28%). These are both down 8 points from last year.

These are some of the results of The Harris Poll® of 2,250 adults surveyed online between November 13 and 18, 2013 by Harris Interactive.

When asked which industries are generally honest and trustworthy so that you normally believe a statement by a company in that industry, over two in five Americans (42%) reply “none of these” – an increase from last year, when 36% indicated the same. After tobacco companies, the industries that are least trusted are oil companies (4%), social media (6%), managed care (6%), telecom (7%), health insurance (7%). Just one in ten say they think packaged food companies (11%), airlines (11%), car manufacturers (11%), pharma and drug companies (10%), and life insurance companies (10%) are generally honest and trustworthy.

The industries trusted by the highest percentages of Americans after supermarkets and hospitals are online search engines (18%), banks (18%), computer hardware companies (17%), online retailers (15%), electric and gas utilities (14%) and computer software companies (13%). The biggest changes since last year on this question are the 8-point drops for supermarkets and hospitals, a 7 point drop for computer software companies and a 6 point drop for electric and gas utilities. Over the past decade, the biggest drops are 17 points for banks and 12 points for packaged food companies.

This series also asks which of the 19 industries should be more regulated by government, and three in ten Americans select “none of these” (29%). The industries that the largest percentages of U.S. adults would like to see more regulated are oil (41%), pharmaceuticals (39%), tobacco (35%), health insurance (34%), banks (31%), electric and gas utilities (24%), packaged food companies (24%) and managed care companies such as HMOs (24%). Few U.S. adults (less than 10%) want to see more regulation of computer hardware and software companies (6% each), online search engines (7%), online retailers (7%) or supermarkets (9%). The biggest changes from last year are drops of 7 points in those who would like to see more regulation of electric and gas utilities and drops of 6 points each for those who would like to see more regulation of managed care companies, life insurance companies and health insurance companies.

Read More »

It makes sense that state lawmakers might feud over who gets to lead California’s Latino Legislative Caucus. The 25 Democrats who make up the group, after all, constitute more than a fifth of the Legislature, control hundreds of thousands of dollars in campaign funds and wield influence that affects millions of Californians.

But the details of the most recent leadership fight caught the attention of FBI agents investigating one caucus member, state Sen. Ron Calderon, for allegedly taking bribes, according to a court-sealed affidavit made public by Al Jazeera America last month.

The affidavit alleges that another caucus member, Sen. Kevin de León, brokered a deal between Calderon and Sen. Ricardo Lara that resulted in Lara retaining the caucus chairmanship and the group paying $25,000 to a nonprofit run by Calderon’s brother, former assemblyman Tom Calderon. According to the affidavit, Ron Calderon told an undercover FBI agent that the brothers planned to draw eventually on money held by the nonprofit to make “part of a living.”

No charges have been filed, but the emerging case has exposed caucus decisions to public view just as the group’s influence is peaking. Its membership has grown from five members when it formed in 1973 to 25 members today – and the caucus now controls hundreds of thousands of dollars that donors with business at the Capitol give to its political action committees and nonprofit foundations. The caucus played a major role in influencing legislation this year, including a package of bills expanding rights for undocumented immigrants and killing a bill to ban plastic bags at grocery stores.

“If you look at the last 20 years, the influence and the political clout of the Latino Legislative Caucus has grown tremendously,” said former Assembly Speaker Fabián Núñez. He said the Latino caucus has gained power as the demographics of the Legislature has evolved to more closely reflect Californians.

“When people ask me for advice, I always say, ‘The more power you have, the more attention you’re going to get. And sometimes that’s good, and sometimes that’s bad. You get scrutinized.’”

The affidavit’s allegation that the Latino caucus used money from one of its political fundraising accounts to pay off Calderon during the chairmanship dispute is the first confirmation that the caucus leader has been drawn into the FBI’s broader probe of Calderon, a Montebello Democrat. Lara, the Bell Gardens Democrat who was re-elected caucus chair on Dec. 3, has declined The Bee’s interview requests to discuss the investigation and caucus fundraising since June.

“The longer the investigation goes, the longer the Latino caucus and some of its leadership members look like they’re being investigated,” said Jaime Regalado, former director of the Pat Brown Institute of Public Affairs at California State University, Los Angeles.

“The case starts to take prisoners beyond Ron Calderon. That’s a danger to those legislators even if none of them are (convicted) of wrongdoing in a major sense. It looks bad. It looks like there are favors.”

De León, a Democrat from Los Angeles, announced in June that he’s been subpoenaed in the case. Last week, U.S. attorneys sent De León’s lawyer a letter saying he is a witness, not a target, of their investigation into possible corruption by Calderon and others.

Key legislation pushed

The Legislature has more than a dozen caucuses, collections of lawmakers with common interests that are organized by ethnicity, region, political party or issues. They can work as a bloc to shape policy decisions and, in some cases, band together to support political candidates. The Latino caucus has two staff members paid for by the state Senate, at a cost of roughly $169,000 a year.

When reports first surfaced that the FBI had rolled into the Capitol on June 4, the Senate’s sergeant-at-arms told the media that agents executed search warrants on two offices: one belonging to Calderon, the other to the Latino caucus. The next day, he corrected the first report and said the Latino caucus office had not been searched.

Lara told Latino media that his caucus had been unfairly maligned by erroneous reports.

“What happened will certainly put a cloud on the work we are doing,” Lara told Vida En El Valle, McClatchy’s bilingual newspaper that serves the Central Valley. “Even though we were mistakenly involved in what happened, this investigation (overshadowed) the work we have planned out for our constituencies and the state, especially for the Latino community.”

As it turned out, the Latino caucus was a force in passing – and killing – significant pieces of legislation this year.

After huddles on the Senate and Assembly floors in the final days of session, Latino lawmakers successfully shepherded a bill to give drivers licenses to undocumented immigrants. Gov. Jerry Brown signed Assembly Bill 60 with fanfare at ceremonies in Los Angeles and Fresno.

Other achievements for the caucus this year included bills that Brown signed to raise California’s minimum wage, expand Medi-Cal eligibility, allow undocumented immigrants to become lawyers, give overtime pay to domestic workers and limit the ability of local law enforcement agencies to detain people for immigration violations.

The eight senators and 17 Assembly members in the Latino caucus are all Democrats, but they are not uniformly liberal. Many are business-friendly Democrats, making the caucus a frequent focus of industry lobbying efforts.

Oil, pharmaceutical and technology companies have given some of the largest donations to the caucus nonprofit foundation at Lara’s behest. This year, Lara has directed $192,000 from interest groups to the Latino Caucus Leadership Foundation, one of two nonprofits affiliated with the caucus.

The caucus also has two political fundraising committees – Yes We Can and the Latino Caucus Leadership PAC – that accept donations from interest groups and give money to support Latino candidates. Lara canceled a Latino Caucus Leadership PAC fundraiser in May after The Bee reported that the owner of the Las Vegas casino hosting the event stood to benefit from a contentious gambling bill awaiting a vote on the Senate floor.

Bag ban is killed

While donors can give only $4,100 per election to legislative candidates, state law allows unlimited contributions to independent PACs, such as those connected to the Latino caucus. Since 2011, the two campaign committees affiliated with the Latino caucus have raised $1.17 million and spent $1.06 million.

The San Manuel Indian tribe, which has been pushing for a bill to allow Internet poker in California, has given $211,000. The Realtors’ association, which lobbied hard against a proposed fee to pay for more affordable housing, has given $105,000. Pacific Gas and Electric has given $46,000. Cigarette companies have given $45,000. Plastic bag manufacturer Hilex Poly gave $25,000.

The company opposed a bill that sought to ban plastic shopping bags statewide, and the Latino caucus killed the measure on the Senate floor in May. Senate Bill 405 was carried by Sen. Alex Padilla, a Democrat who represents a moderate San Fernando Valley district and is a member of the Latino caucus. It had the support of the grocers association, which argued that a statewide policy on plastic bag use would be better than the patchwork of local ordinances now in effect.

During a lengthy floor debate, Lara was the first Democrat to voice opposition to the bill, saying it would result in the loss of 700 jobs at a bag factory in his district.

“These are hard-working immigrant families who are undereducated, monolingual, and are not going to have an opportunity to find another type of employment,” Lara said.

Four more Latino Democrats spoke against the bill, backing up Lara’s argument that it would be bad for poor people who can’t pay for bags, or harm those who work in bag factories.

“These jobs are by far and large held by immigrants. The vast majority are women. Women head of households. Women who have to work to put the food on the table. Women who have to work to pay for the roof over their families’ head. Women who have to work to put clothes on their children’s back,” de León said.

“So I consider myself an environmentalist, but this is not an abstract concept to me. These are real jobs. These are real lives.”

After the Latino caucus spoke, it was clear that Padilla’s bill was going down. In his closing remarks, Padilla called out his Latino colleagues, saying three times that his district “ain’t that different” from theirs. In a house where bills carried by Democrats almost always pass handily, Padilla’s measure fell three votes short.

Reasons for the bill’s defeat have become a source of discussion on blogs and editorial pages around the state. Some supporters of the plastic bag ban say Latino caucus members were persuaded by Núñez, the former Assembly speaker, who now works for the company that lobbies on behalf of plastic bag makers. Núñez is a partner at Mercury Public Affairs, which represents the plastic bag association. He is not a registered lobbyist but said he provides Mercury clients, including the plastic bag group, with strategic advice.

Núñez is close with both Lara and de León. Lara served on Núñez’s staff when he was speaker. De León has said he considers Núñez family; their friendship goes back to growing up together in Los Angeles.

Those relationships are not why the bill failed, Núñez said.

“Just because someone is your friend doesn’t mean they are going to agree with you all the time,” Núñez said. “It’s outrageous for anybody to make that kind of reach.”

De León wrote in a Los Angeles Daily News op-ed last week that he would support a plastic bag ban if the law contained protections for workers.

Marce Gutierrez is an advocate in San Francisco who heads Azul, a group aimed at getting Latinos involved in environmental causes. She co-wrote an op-ed in the San Jose Mercury News last month that said the Latino caucus “played a role in two of the biggest disappointments on environmental policy this year” in killing the plastic bag ban and supporting amendments to weaken a bill to regulate hydraulic fracturing.

In an interview with The Bee, Gutierrez said she considers the Latino caucus’s position on environmental issues “a growing pain.”

“Any caucus growing in power is going to be subject to (a lot of) influences,” she said.

Donation questioned

Lobbying and campaign contributions are forces that every lawmaker has to contend with. But representatives from poor districts may be especially vulnerable to the power of deep pockets, said Wesley Hussey, an assistant professor of government at California State University, Sacramento.

People of modest means are less likely to give to political campaigns and less likely to vote, he said, and many Latino lawmakers represent districts where large portions of the adult population can’t vote because they are not U.S. citizens. That creates what Hussey called an “accountability issue” for some legislators.

“If they win the primary and get into office, they are very secure. They’re not going to lose re-election. So a lot of interest groups can come to them and say, ‘Sponsor my rule change,’ and they do,” Hussey said.

Voter turnout in Calderon’s district was among the lowest in the state during his most recent election in 2010. Just 18 percent of registered voters in his district came out to vote that year, according to Political Data Inc.

Even as Calderon accepted $60,000 in bribes from an undercover FBI agent posing as a film studio owner, the affidavit alleges, he talked of wanting to help his constituents by pushing for the policy the agent requested.

In August of last year, as the agent and Calderon discussed a failed plan to amend a bill so that smaller productions could qualify for the tax credit, Calderon said: “I am the Chair of the Latino Caucus next year. I want to help my people. And, they are all, they are all small businesses,” according to the affidavit.

At the time, Calderon was vice chairman of the caucus and Lara was its chair, having taken over in February 2012 after turmoil over the way then-Assemblyman Tony Mendoza ran the caucus. There had been allegations that Mendoza didn’t handle caucus finances transparently and tensions over whether the caucus would endorse Tom Calderon in his run that year for Assembly.

Ron Calderon was in line to become chairman in December, when legislators began a new two-year session. Instead, the Latino caucus voted to keep Lara as chair. Just a few weeks later, campaign finance reports show that one of the fundraising arms of the Latino caucus contributed $25,000 to Tom Calderon’s nonprofit called Californians for Diversity.

The contribution was an unusual payment for the Yes We Can political action committee. It is the only “civic donation” the political action committee has ever reported.

“That was a nonprofit we were trying to raise money for to heighten public awareness of the Latino caucus,” Tom Calderon told The Bee in a phone interview before the FBI affidavit became public. “We had just started fundraising. We haven’t done very much.”

If the allegation that the caucus paid Tom Calderon’s group in exchange for Ron Calderon stepping down from the race for caucus chairman proves true, it’s unclear whether such a deal would be illegal. Choosing a caucus chairman is a political decision, not a governmental action, experts in California political law said.

“It’s a tricky area because the political process has negotiation and bargaining and compromise all the way through it,” said Daniel Lowenstein, a retired professor at UCLA’s law school who was the first chairman of the Fair Political Practices Commission.

“So when does that kind of bargaining and compromising become improper? One important factor in that is if somebody is getting personal benefits rather than political benefits.”

Reprinted from The Sacramento Bee (11/10/2013).