FDA Report on Food Code Adoption

As manufacturers of food products, it is significant to understand the food safety regulations for retailers and the food service industry, such as restaurants and grocery stores, and institutions, such as nursing homes. On October 4, 2017, FDA released its report on “Adoption of the FDA Food Code…” which, in relevant part, provides that all 50 states and the District of Columbia have at least one regulatory agency that has adopted at least one version of the Food Code. In this regard, however, it is worth noting that not all such agencies have adopted the most current version of FDA’s Food Code and, this being the case, that such legally adopted standards are not necessarily “best practices” presently for ensuring food safety and/or reducing the risk of foodborne illnesses.

FDA encourages adoption of the Food Code by local, state, and federal governmental jurisdictions for administration by the various departments, agencies, bureaus, divisions, and other units within each jurisdiction that have been delegated compliance responsibilities for food service, retail food stores, or food vending operations. FDA’s Food Code is a model that is offered for state and local legislatures to adopt or incorporate into state and local law requirements. The intent of the Food Code is to create a uniform system of provisions across all states that address the safety and protection of food offered at retail and in food service in order to safeguard public health and ensure food is unadulterated and honestly presented when offered to the consumer.

FDA encourages its state, local, tribal, and territorial partners to adopt the latest version of the Food Code (i.e., presently 2013, as supplemented). However, it is significant that states have adopted various versions of the Food Code, which is now updated every four years. Versions adopted by the states are as follows:

  • The 1995 Food Code is adopted in one state: South Dakota.
  • The 1997 Food Code is adopted in one state: Minnesota.
  • The 1999 Food Code is adopted in three states: Arizona, Connecticut (by one agency), and Massachusetts.
  • The 2001 Food Code is adopted in six states: California, Florida (by one agency), Indiana, Louisiana, New York (by one agency), and Vermont.
  • The 2005 Food Code is adopted in five states: Alaska, Kentucky, New Jersey, Rhode Island, and West Virginia.
  • The 2009 Food Code is adopted in twenty states: Arkansas, Colorado, District of Columbia, Florida (by two agencies), Hawaii, Iowa, Kansas, Maryland, Maine, Michigan, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oregon, Tennessee, Washington, Wisconsin, and Wyoming.

The 2013 Food Code is adopted in seventeen states: Alabama, Connecticut (by one agency), Delaware, Georgia, Idaho, Illinois, Mississippi, Missouri, Montana, Nevada, New Mexico, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, and Virginia. Although there are typically few additions or revisions to the Food Code by year, some are meaningful. For example, revisions to the 2013 Food Code addressed 27 different recommendations, affecting, for example:

  • clarification of labeling requirements for food packaged at retail,
  • reduced oxygen packaging,
  • definition of packaging,
  • refillable containers,
  • customer notification of inspection reports,
  • non-continuous cooking minimum cook temperatures,
  • cleaning and sanitizing equipment used in preparing raw foods, and
  • bare hand contact with ready-to-eat food.

Accordingly, the collective revisions to the Food Code since 1995 are significant to retailers and food service providers. Perhaps even more significant, particularly for those operating in a number of states, is knowing the regulatory purview of state authorities and which versions of the Food Code apply. Certain states delegate regulatory oversight to more than one agency, e.g. two regulatory agencies may have respective authority over restaurants and retail food stores. FDA’s report provides the following map, demonstrating how certain states assign regulation to multiple agencies:

Currently there are 66 state agencies that have oversight of different segments of the retail and food services industry. Some version of the Food Code now has been adopted by 64 of those state regulatory agencies.

Mutual understanding between food manufacturers and their downstream retail/food service industry customers about the latter’s food safety responsibilities, including those imposed by the applicable Food Code, reasonably should facilitate compliance and business relations.

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