As of December 31, 2023, only three states and two territories had adopted the most recent version (2022) of the FDA Food Code. Following previous versions were 18 states using the 2017 Food Code, 14 states following the 2013 version, and the rest of the states and territories using a version preceding that, with one not adopting the Food Code at all (South Dakota).
Even those low statistics, cited in the recently published FDA CFSAN annual Food Code report, are a bit skewed as some states have multiple agencies, and the cited status reflects the agency that has adopted the most recent version of the Code.
The Food Code was developed by FDA as a model for safeguarding public health and represents the agency’s “best advice for a uniform system of provisions that address the safety and protection of food offered at retail and in food service.” It is updated every four years (with the 2021 version delayed to 2022 due to the COVID pandemic), with FDA sometimes publishing supplements in the interim. Ten versions have been published since its current format was issued in1993.
While FDA encourages the adoption of Food Code by state, local, tribal, and territorial governments, preferably in its most current version, adoption is purely voluntary. Additionally, it can be adopted in full or in part, as each applicable regulatory body can determine the version or section(s) to adopt and enforce.
While most states and jurisdictions do incorporate the Code into their restaurant and retail regulations, many fail to update their regulations when new versions are published. This is not ideal, as the science of food safety and industry best practices continue to evolve, but the use of older versions by many is likely driven by their lack of resources for regular regulatory updates. Whether or not this is justification for the use of a version more than two decades old (as is the case with five states) is a matter of perspective, as lack of money and/or people resources play into many government decisions much more often than is ideal.
There are significant advantages to allocating resources to adopt updated versions as they become available, with the 2022 version providing:
- Uniform standards that reduce complexity and better ensure compliance.
- The elimination of redundant processes for establishing food safety criteria.
- A more standardized approach to inspections and audits.
Thus, one goal of the FDA Retail Food Safety Initiative is to encourage the “widespread, uniform, and complete adoption” of the most current Food Code. However, because the Food Code process works for the most part, FDA has continued to “encourage” adoption, holding back from being more authoritative with retail and restaurant enforcement. But the system only works if the states stay current and have the resources to hold industry accountable to the code.
The Food Code has evolved over the years to be an excellent compendium of how to keep food safe at retail and restaurant establishments. The creation and updating processes involve input from many stakeholders, including regulators, industry and public health experts. As such, it is a great synthesis of both the right things to do and how achievable it is.
In the U.S. alone, more than 3,000 state, local and tribal agencies regulate more than 1 million food establishments (restaurants; grocery stores; vending machines; cafeterias; and health-care facility, school, and correctional facility outlets). With so many retail and restaurant establishments, outbreaks and illness can be significant. If these are not reduced or mitigated, we would fully expect it to become an area for FDA to become more regulatorily involved.
As we have said in the past, FSMA has a significant focus on the manufacturing and processing side of food production – with virtually no focus on food safety requirements downstream of a distribution center. So, will this all change at some point in the future? Clearly, greater regulation in the retail and restaurant space is an obvious gap when it comes to FDA activity. Yet FDA taking a greater role in retail and restaurant safety would have to be done in very close collaboration with the states and with a lot more funding.
Historically, FDA has made several attempts to work more closely with the states, but such efforts have sadly not been consistently maintained. So, before anyone thinks of FDA taking on a more active role in the enforcement of the Food Code, step one is to build a lot more bridges and interaction with the states.
Need assistance in ensuring your foodservice or retail food establishment is compliant with all local, state, and federal regulations? Give TAG a call today – our experts can help!
