PA 17-93—sSB 901

Public Health Committee

Judiciary Committee

AN ACT CONCERNING THE DEPARTMENT OF PUBLIC HEALTH'S RECOMMENDATION REGARDING ADOPTION OF A MODEL FOOD CODE

SUMMARY: This act requires the Department of Public Health (DPH), by July 1, 2018, to adopt and administer the federal Food and Drug Administration's (FDA) Food Code, and any published supplements, as the state's food code for regulating food establishments. Under prior law, DPH regulated these establishments under the Public Health Code. The act authorizes the commissioner to adopt implementing regulations.

As under existing DPH regulations, starting July 1, 2018, the act requires food establishments to obtain a permit or license to operate from a municipal or district health department. Generally, it establishes similar procedures and requirements as existing DPH regulations in areas such as certification of food inspectors and food establishment inspections.

Additionally, the act:

1. modifies the definitions of the four classifications of food establishments;

2. lowers, from 45 degrees to 41 degrees Fahrenheit, the minimum temperature threshold for cold holding potentially hazardous foods;

3. lowers, from 140 degrees to 135 degrees Fahrenheit, the minimum temperature threshold for hot holding potentially hazardous foods;

4. increases, from 16 to 20 contact hours, the required number of training hours food inspectors must complete every three years to renew their certification;

5. requires, starting July 1, 2018, Class 3 and Class 4 food establishments to employ a “certified food protection manager” instead of a “qualified food operator” and extends the requirement to Class 2 food establishments;

6. requires a local health director to investigate and take specified actions to control a suspected food-borne illness or outbreak;

7. allows the DPH commissioner, under certain conditions, to publicly announce the identity of a food establishment that was the source of a food-borne illness or outbreak;

8. allows a food establishment to request, until June 30, 2018, a variance from the Public Health Code to use the sous vide cooking technique and acidification of sushi rice;

9. allows a food establishment's owner or operator aggrieved by inspection-related and other orders to appeal to the local health director within 48 hours after the order was issued; and

10. subjects violators to a class C misdemeanor (see Table on Penalties).

The act also exempts persons who donate food or nonprofit organizations that distribute donated food to senior centers or political subdivisions of the state from liability for civil damages or criminal penalties resulting from the food's nature, age, condition, or packaging. The law already provides such an exemption to certain persons or organizations that donate or distribute donated food to nonprofit organizations or corporations. The immunity does not apply if it is established that the donor knew or had reasonable grounds to believe that the food was adulterated or not fit for human consumption.

Finally, the act makes various technical and conforming changes.

EFFECTIVE DATE: October 1, 2017, except that (1) a conforming change eliminating existing DPH food code regulations takes effect July 1, 2018 and (2) provisions on Public Health Code variances that allow for sous vide and acidification of sushi rice take effect upon passage.

FDA FOOD CODE

Permit or License Required

Starting July 1, 2018, the act requires food establishments to generally obtain a permit or license from a municipal or district health department to operate, as under existing DPH regulations. Before obtaining the permit or license, the act requires establishments to register with DPH.

The act exempts from the registration requirement temporary food establishments and farmers' markets. Existing DPH regulations require temporary food establishments to obtain a permit of up to 14 days if required by local ordinance. By law, farmers' markets may obtain one permit from a municipality and use it at any location in the state.

The act specifies that its provisions do not limit the authority of the agriculture commissioner or local health director to require farmers to comply with farmers' market laws.

Classification and Inspection of Food Establishments

The act retains the four classifications of food establishments in existing DPH regulations, but it modifies their definitions as shown in Table 1. As under existing regulations, the act requires local health directors to annually review a food establishment's classification.

Table 1: Food Establishment Classifications

Classification

Under Existing DPH Regulations (Conn. Agencies Regs., 19-13-B42(s)(3))

Under the Act

Class 1 establishment

Food establishment with commercially prepackaged foods, hot or cold beverages, or both; does not include preparation, cooking, or hot holding of potentially hazardous foods, except that commercially packaged pre-cooked foods may be heated and served in the original package within four hours

Food establishment that only offers for retail sale (1) prepackaged food or food prepared in the establishment that is not time- or temperature-controlled for safety or (2) commercially processed food that is time- or temperature-controlled for safety, heated for hot holding, but not permitted to be cooled

Class 2 establishment

Food establishment using cold or ready-to-eat commercially processed food needing no further heat treatment, hot or cold beverages, or both; does not include cooking, heating, or hot holding of potentially hazardous foods, except that commercially packaged pre-cooked foods may be heated and served in the original package within four hours and commercially precooked hot dogs, kielbasa, and soup may be heated if transferred directly out of the original package and served within four hours

Retail food establishment that does not serve a population highly susceptible to food-borne illness and offers a limited food menu that is (1) prepared, cooked, and served immediately or (2) prepared, cooked, and time- or temperature-controlled for safety and may require hot or cold holding, but not cooling

Class 3 establishment

Food establishment that prepares potentially hazardous food by hot processes and serves it within four hours of cooking it

Retail food establishment (1) that does not serve a population that is highly susceptible to food-borne illness and (2) has an extensive food menu, many of which are time- or temperature-controlled for safety and require complex preparation (e.g., cooking, cooling, handling, and reheating for hot holding or raw ingredients)

Class 4 establishment

Food establishment that prepares potentially hazardous food by hot processes and may hold it for more than four hours before serving it

Retail food establishment (1) serving a population highly susceptible to food-borne illnesses (e.g., preschool students or hospital or nursing home patients) or (2) conducting specialized food processes (e.g., smoking or curing)

Starting July 1, 2018, the act requires food establishments to be inspected as follows:

1. Class 1 establishments, at least once every 360 days;

2. Class 2 establishments, at least once every 180 days;

3. Class 3 establishments, at least once every 120 days; and

4. Class 4 establishments, at least once every 90 days.

(Existing DPH regulations provide the same inspection schedule.)

The act requires temporary food establishments to be inspected before a permit is issued and as often as necessary to ensure their compliance with the FDA Food Code.

Existing DPH regulations require inspection forms to be scored based on point values assigned for all compliance requirements. The FDA Food Code instead requires inspection forms to list the number of “priority,” “priority foundation,” and “core” violations identified during the inspection (see BACKGROUND).

Certified Food Protection Managers

Existing DPH regulations require anyone who owns, operates, or manages a Class 3 or Class 4 food service establishment to be a qualified food operator or employ one on-site in a supervisory position at the establishment. The qualified food operator must be trained by a DPH-approved testing organization, pass an exam, and ensure that food preparation personnel are trained in food safety.

Starting January 1, 2018, the act instead requires Class 3 and Class 4 food establishments to employ a “certified food protection manager” and extends the requirement to Class 2 establishments. To be designated as such, the person must pass an exam that is part of a certification program evaluated and approved by an accrediting agency recognized by the Conference for Food Protection (see BACKGROUND). The act also requires a certified food inspector to verify the food protection manager's certification when inspecting the establishment.

Similar to existing DPH regulations, the act specifies that the certified food protection manager requirements do not prohibit the sale or distribution of food at certain bed-and-breakfast establishments and various noncommercial functions, such as bake sales or potluck suppers at educational or religious organizations.

Appeal of Inspection Violation Orders

Similar to existing DPH regulations, the act allows a food establishment's owner or operator to appeal to the local health director if aggrieved by an order to (1) correct inspection violations a food inspector identified or (2) hold, destroy, or dispose of unsafe food. The appeal must be made within 48 hours after the order is issued.

The health director must review the appeal request and may vacate, modify, or affirm the order. If the health director affirms the order, he or she must order the corrective actions the food inspector specified.

The act allows the owner or operator to appeal to DPH if he or she is aggrieved by the local health director's affirmed or modified order, including an order to suspend the food establishment's license or permit to operate. The owner or operator must appeal within three business days after receiving the order. During the appeal, the order remains in effect until the DPH commissioner orders otherwise.

Investigations of Food-Borne Illness or Outbreak

Similar to current practice, the act requires a local health director who has reasonable cause to suspect a possible food-borne illness or outbreak to investigate and take action to control it. Actions may include (1) securing employee morbidity histories, (2) requiring medical or laboratory examinations of employees, (3) modifying a menu, or (4) any other restriction or action the director deems necessary.

Any person who violates the act, provides false information during an investigation, or refuses to cooperate or otherwise impedes an investigation is guilty of a class C misdemeanor (see Table on Penalties).

Announcements Regarding Food-Borne Illness or Outbreak

Notwithstanding state law, the act permits the DPH commissioner to announce to the public, at his sole discretion, the identity of a food establishment that was the source of a food-borne illness or outbreak. The commissioner may do so if DPH verified the outbreak or illness for the purpose of reducing associated morbidity and mortality. He must also make every effort to limit the disclosure of personally identifiable health data to the minimal amount necessary to accomplish this purpose.

Other Provisions

Similar to existing DPH regulations, the act:

1. requires, starting July 1, 2018, (a) food inspectors to obtain certification from DPH after meeting specified education and training requirements and (b) certified food inspectors to inspect food establishments as prescribed by the DPH commissioner and

2. exempts from the certified food manager requirements (a) soup kitchens staffed exclusively by volunteers, (b) volunteers serving meals from a nonprofit organization, and (c) people serving meals prepared under a certified food protection manager's supervision at federally funded elderly congregate meal sites.

The FDA Food Code, similar to existing DPH regulations, addresses topics such as (1) sanitation of places where food is stored, prepared, or served; (2) requirements for equipment and utensils; (3) use of chemicals; and (4) personnel management and training.

Public Health Code Variances for Sous Vide and Acidification of Sushi Rice

Notwithstanding the law, the act allows a food service establishment to request from the DPH commissioner a variance from Public Health Code requirements in order to (1) use the sous vide cooking technique and (2) acidify sushi rice, as an alternative to temperature control. An establishment may make such a request only from the date the act passed until June 30, 2018.

The commissioner must review a request for such a variance and notify the food establishment of the request's status within 30 days after receiving it. Under the act, the commissioner may grant the variance if he determines that it would not result in a health hazard or nuisance.

Repealers

The act makes conforming changes by repealing statutory provisions on (1) displaying signs in food establishments on the signs of choking, (2) allowing food establishments to use the sous vide cooking technique, and (3) allowing restaurants and catering establishments to acidify sushi rice as an alternative to temperature control.

BACKGROUND

FDA Food Code

The FDA Food Code regulates entities that sell, manufacture, or provide food as part of their services. It establishes standards for safe food storage, handling, and preparation; inspection of food establishments, retail food operations, and institutions (e.g., child care centers and nursing homes); and training and education requirements for regulators and food establishments. The code is updated every four years. (The latest edition is 2013.)

FDA Food Code Violations

Under the FDA Food Code, inspection violations are generally categorized as “priority,” “priority foundation,” or “core” items. Priority violations have a direct connection to preventing, eliminating, or reducing food-borne illness or injury. Priority foundation items require specific actions, equipment, or procedures by an establishment's management to control risk factors such as personnel training, documentation, and labeling. Core items are typically related to general sanitation and operating procedures, equipment design, and general maintenance, among other things. Both priority and priority foundation violations generally must be corrected at the time of inspection.

Conference of Food Protection

The Conference of Food Protection is a nonprofit organization that provides a formal process for food industry, regulatory, academic, consumer, and professional organizations to make recommendations on federal food safety laws and regulations. Its executive board includes representatives of (1) state and local food regulatory agencies from each of the FDA regions; (2) the U.S. Department of Agriculture, Centers for Disease Control and Prevention, and FDA; (3) the food industry; (4) academic institutions; and (5) consumers.