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Retail and Food Service Sector and Consumers

The first section of this page discusses regulation of retail food businesses (e.g., grocery stores) and food service sectors (e.g., restaurants and cafeterias). The second section identifies consumer education programs relating to food safety and nutrition.

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Regulation of Retail & Food Service Sector

The retail sector of the food industry encompasses food sold to consumers for preparation and consumption at home as well as the final preparation of food for consumption away from home. Grocery stores and other food markets generally sell food that is not ready for consumption but will require the consumer to complete the final preparation.  Restaurants, cafeterias, deli's, and food carts are common examples of businesses that perform the final preparation and sell the food ready for consumption.  Both components of the retail food sector are extensively regulated by state law.  Federal law often defines a clear exception that the retail food sector is not within the scope of the federal regulatory scheme.

As an example, North Dakota law illustrates the breadth of the retail food sector.

  • N.D.C.C. 23-09-01 Definitions:

    • "Food establishment" means any fixed restaurant, limited restaurant, coffee shop, cafeteria, short-order cafe, luncheonette, grill, tearoom, sandwich shop, soda fountain, tavern, bar, catering kitchen, delicatessen, bakery, grocery store, meat market, food processing plant, school, child care, or similar place in which food or drink is prepared for sale or service to the public on the premises or elsewhere with or without charge.

      • Note that even a church social fits the definition of a food establishment:  a place in which food or drink if prepared for service without charge.

    • "Bakery" means an establishment .. that manufactures or prepares bread or bread products, pies, cakes, cookies, crackers, doughnuts ...

    • "Commissary" means ... any ... place in which food [is] handled, prepared .. from which mobile food units are supplied or serviced ...

    • "Limited restaurant" means a food service establishment that is restricted to a specific menu ... such as frozen pizza and sandwiches...

    • "Mobile food unit" means a vehicle-mounted food service establishment designed to be readily movable.

    • "Pushcart" means a non-self-propelled vehicle limited to serving nonpotentially hazardous food or commissary-wrapped food ...

    • "Restaurant" includes every building ... maintained ... as a place where meals or lunches are served...

    • "Retail food store" means any establishment ... where food [is] offered to the consumer and intended for off-premise consumption...

    • "Retail meat market" means a commercial establishment ... used to process, store, or display meat or meat products for retail sale to the public... The term does not include a meat establishment operating under the federal or state meat inspection program.

    • "Salvage processing facility" means an establishment engaged in the business of reconditioning ... distressed merchandise for human consumption ...

    • "Temporary food service establishment" means any food service establishment that operates at a fixed location for not more than fourteen consecutive days...

    • "Food processing plant" means a commercial operation that manufactures, packages, labels, or stores food for human consumption and does not provide food directly to a consumer.

      • Note the breadth of the preceding term; it encompasses all the food processing discussed in another section.  Recall that states have the authority to regulate food processing even though federal law "leads" the regulation of food processing.  Perhaps the best way to understand these interrelationships is to summarize these points as "1) federal law leads the regulation of food processing; 2) state law supplements the regulation of food processing and relies on the Food Code as the basis for these state laws; however, 3) state law is the primary regulator of retail and food processing businesses; again, the Food Code underpins the state regulatory laws."
  • N.D.A.C. 33-33-03 Food Vending Rule

    • Vending machines and supplying the vending machines also are regulated.

This list of definitions demonstrates the breadth of businesses and other entities comprising retail & food service sector of the food industry. 

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The state agency responsible for overseeing the retail food industry varies among states, but often it is either a state department of health, state department of agriculture, or perhaps a combination of the two departments, as determined by the state legislatures.  In North Dakota, the state Department of Health has been given that responsibility.  In Minnesota, the state Department of Agriculture is responsible for overseeing the retail food sector, for example.

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North Dakota Example

The following list links to North Dakota statutes and regulations directing the Department of Health in its role of overseeing the state's retail food sector.

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Selected provisions of North Dakota law include

  • Food establishments are required to have a state license (N.D.C.C. 23-09-16)
  • Licensed food establishments are subject to state inspections (N.D.C.C. 23-09-11)
  • Other topics addressed in the statute include plumbing, toilets, garbage, washroom, screens,  drinking water, fire safety, and salvaged food distributor.
  • This statute does not apply to bed and breakfast facilities for which rules have been adopted under N.D.C.C. 23-09.1
  • The North Dakota Department of Health has adopted FDA's suggested Food Code as state regulations; see (N.D.A.C. chap. 33-33-04).

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Food Code

  • The Food Code was first prepared by the FDA in 1993 as recommendations (or a model) to state and other local governments "by providing them with a scientifically sound technical and legal basis for regulating the retail and food service segment of the industry (restaurants and grocery stores and institutions such as nursing homes)."  The FDA previously had offered model codes extending back to the 1930s, but the 1993 Food Code can perhaps be described as "more encompassing" than prior codes which had narrower focus.
  • Topics addressed in the 2013 Food Code include management and personnel; food; equipment, utensils and linens; water, plumbing and waste; physical facilities; and poisonous and toxic materials (also see http://www.fda.gov/Food/GuidanceRegulation/RetailFoodProtection/FoodCode/ucm374275.htm).
  • Detailed regulation of an industry, such as state government oversight of the retail food sector, requires extensive understanding of food risks, practices to reduce risks, and legal concepts.  FDA provides the Food Code in an effort to reduce the cost for states to research and develop appropriate regulations.  With access to the FDA-recommended Food Code, states are more likely to adopt appropriate or effective rules.  The Food Code also promotes consistency among state laws, but consistency may not be that critical for the retail food sector.
  • HACCP is addressed in the Food Code (8-201.13) but it is primarily a recommendation to the retail food sector, rather than a mandate.

 

Additional points about the Food Code

The following list are selected topics from the Food Code; they are meant to illustrate only a few of the many detailed requirements of the Food Code.

  • General care of food supplies:  1. Food shall be obtained from sources that comply with the law.  2. Food shall be in sound condition, free from spoilage, filth, or other contamination and shall be safe for human consumption. 3. Food shall be safe, unadulterated, and honestly presented. and 4. Food prepared in a private home may not be used or offered for human consumption in a food establishment.

  • Fluid milk, dry milk, and milk products shall be obtained pasteurized and comply with grade A standards.  2. Packaged food shall be labeled as specified in law.  Ice for use as a food or a cooling medium must be made from drinking water. After use as a cooling medium, ice may not be used as food.

  • Food shall be protected from cross-contamination by: a. Separating raw animal foods during storage, preparation, holding, and display from (1) Raw ready-to-eat food, including other raw animal food, and (2) Cooked ready-to-eat food; b. separating types of raw animal foods from each other, using separate equipment for each type, arranging each type of food in equipment so that cross-contamination is prevented; and preparing each type of food at different times or in separate areas; c. cleaning and sanitizing equipment and utensils; d. storing the food in packages, covered containers, or wrappings; ... g. storing damaged, spoiled, or recalled food as required in subsection 8 of section 33-33-04-06; h. separating fruits and vegetables before they are washed.
  • Food that is unsafe, adulterated, or not honestly presented shall be reconditioned; food that is not from an approved source shall be discarded; ready-to-eat food that may have been contaminated by an employee who has been restricted or excluded shall be discarded; food that is contaminated by food employees, consumers, or other persons through contact with their hands, bodily discharges, such as nasal or oral discharges, or other means shall be discarded.

  • Food shall be prepared with the least possible manual contact, with suitable utensils, and on surfaces that prior to use have been cleaned, rinsed, and sanitized to prevent cross-contamination. A food employee may not use a utensil more than once to taste food that is to be sold or served. Raw fruits and vegetables must be thoroughly washed in water to remove soil and other contaminants before being cut, combined with other ingredients, cooked, served, or offered for human consumption...

  • [I]f raw, raw-marinated, partially cooked, or marinated partially cooked sh are served or sold in ready-to-eat form, the person in charge shall record the freezing temperature and time to which the fish are subjected and shall retain the records of the food establishment for ninety calendar days beyond the time of service or sale of the fish.

  • The person in charge must be present at the food establishment during all hours of operation, and ensure that: persons unnecessary to the food establishment operation are not allowed in the food preparation, food storage, or warewashing areas; employees are effectively cleaning their hands, by routinely monitoring the employees’ handwashing; employees are properly cooking potentially hazardous food being particularly careful in cooking those foods known to cause severe foodborne illness and death; employees are using proper methods to rapidly cool potentially hazardous foods; consumers who order raw or partially cooked ready-to-eat foods of animal origin are informed that the food is not cooked sufficiently to ensure its safety; employees are properly sanitizing cleaned multi-use equipment and utensils before they are reused, consumers are notified that clean tableware is to be used when they return to self-service areas such as salad bars; employees are preventing cross-contamination by limiting direct hand contact with exposed, ready-to-eat food when deli tissue, spatulas, tongs, dispensing equipment, or other utensils can be used; employees are properly trained in food safety as it relates to their assigned duties; and employees are informed of their responsibility to report information about their health and activities as they relate to diseases that are transmissible through food.

  • and the list goes on.

The retail and food service sectors are extensively regulated by state law, but many states have adopted the FDA-recommended Food Code.  Accordingly, there is strong federal influence in the oversight of the retail and food sector even though FDA has no authority to directly regulate that sector of the food industry.

 

Education for Consumers

U.S. policy is to "not directly regulate" consumers.  It is the responsibility of the consumer to decide what they will eat.  However, public policy attempts to enable consumers to make those decisions in an informed manner.  One step is to educate consumers so they know how to assess their situation in terms of both nutrition and safety.  A second step is to provide product-specific information to the consumer on the product label.  The information on the label focuses on nutrition and allergies (a safety consideration), quantity, ingredients, and contact information for the food business.  Some food manufacturers voluntarily provide information about preparation and safe handling practices for consumers.

 

  • Consumer still need to make their own decisions; the label is intended to provide the consumer with information about the product; consumer education focuses on assuring the consumer is able to use the product information to make a meaningful decision. Advertising and discretionary information on labels are additional ways to inform and educate, but these too are somewhat regulated to assure the information is accurate, not misleading, and not making inappropriate claims about the product.
  • The distinction between nutrition, food safety and promotion becomes quite blurred.  Much of the mandatory/required information on the label is nutritional information; much of the discretionary information is to encourage the consumer to use the product due to its convenience, taste, etc. Neither of these objectives appear to emphasize food safety.
  • There also are (formal?) educational programs about safe food preparation and (formal?) educational programs about nutrition.

 

Consumer Education -- nutrition

 

Consumer Education -- food safety

  • Safe Food Handling -- USDA web site with links to information for consumers about safe food handling
  • Fight BAC! -- educational program on food safety for consumers
  • FoodSafety.gov -- U.S. federal government web site support by FDA, USDA FSIS, CDC and others

 

The nutrition and food safety education programs are often a collaborative effort among federal, state, and local government agencies, universities, local schools, and others.

 

Summary

The retail/food service sector is extensively regulated by state law, but many states have adopted the FDA Food Code as part of their state law.  The Food Code is offered by the FDA as suggestions/recommendations/guidance to the states.  The Food Code provides extensive and detailed regulations on how retail and food service businesses should handle/store/prepare food, sanitize the facility and equipment, train and direct employees, and how to handle water, waste and toxic materials.

Consumer decisions about their food consumption are NOT regulated.  The public policy/strategy is to provide them 1) educational opportunities to learn about nutrition and food safety, and 2) information about food products (primarily from the product label) so they can make decisions for themselves.

 

 

Email David.Saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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