Transportation Law Update: Combat Food Contamination
In an effort to combat food contamination, in April of 2016, the U.S. Food and Drug Administration issued its final rule establishing new standards and requirements for the transportation of human and animal food. The new rules apply to “shippers, receivers, loaders and carriers who transport food in the United States by motor or rail vehicle, whether or not the food is offered for or enters interstate commerce.” “Carriers” as defined by the rule mean “a person who owns, leases, or is otherwise ultimately responsible for the use of a motor vehicle or rail vehicle to transport food.” Therefore, how these new rules apply is important for motor carriers to know and understand, and it is important to know what responsibilities motor carriers now have as a result. The rules establish requirements for vehicles and transportation equipment, transportation operations, training of carrier personnel, and maintenance of records.
These rules, seen by some as laborious and unnecessary, are at least less demanding than the original proposed rules and instead are more in line with the current best practices concerning cleaning, inspection, maintenance, loading and unloading, and operation of vehicles and transportation equipment.” The new rule requires that vehicles and transportation equipment must be maintained in such sanitary condition for their intended use to prevent food from becoming adulterated.
The new rules also require carriers to provide such necessary design, maintenance, and equipment of the vehicle temperature control to prevent food from becoming adulterated. Vehicles with freezers and mechanically refrigerated cold storage compartments must be equipped with such devises as to show the temperature accurately within the compartment. Any way that the vehicles or transportation equipment are stored must be done to prevent pests or other contaminants from adulterating the food.
The new rules contain a section governing transportation operators and now require that if the Carrier becomes aware of a problem with the temperature control or some other factor which may make the food unsafe for consumption, the food may not be sold until it is determined that the temperature control issue did not render the food unsafe. In the section specifically applicable to Carriers, the new regulations discuss agreements between Shippers and Carriers which highlights the importance of contractually delegating responsibility in accordance with the rules between the Shipper and the Carrier.
Date of Compliance
The required date of compliance depends on whether the party falls within the definition of a small business, defined by the rule to mean: (1) “businesses other than motor carriers who are not also shippers and/or receivers employing fewer than 500 persons” and (2) “motor carriers having less than $27.5 million in annual receipts.” If a party meets this definition, then the business has until April 6, 2018 to comply. However, anyone not falling within this narrow definition must comply with the Final Rule by April 6, 2017.
Another important aspect of understanding these rules is being aware of the exemptions. There are eight noteworthy exemptions:
• Shippers, receivers, or carriers engaged in food transportation operations that have less than $500,000 in average annual revenue;
• Transportation activities performed by a farm;
• Transportation of food that is transshipped through the United States to another country;
• Transportation of food that is imported for future export and that is neither consumed [n]or distributed in the United States;
• Transportation of compressed food gases (e.g. carbon dioxide, nitrogen or oxygen authorized for use in food and beverage products), and food contact substances;
• Transportation of human food byproducts transported for use as an animal without further processing;
• Transportation of food that is completely enclosed by a container except a food that requires temperature control for safety; and
• Transportation of live food animals, except molluscan shellfish.
The Sanitary Food Transportation Act allows the agency to waive the requirements of the final rule if the agency determines that the waiver will not allow for conditions of transportation that would render the food unsafe for human or animal health. The agency will publish waivers for two particular groups of people/businesses: 1) Shippers, carriers, and receivers with valid permits and are inspected under the National Conference on Interstate Milk Shipments (NCIMS) Grade A Milk Safety Program (and only when Grade A milk and milk products are being shipped) and 2) Food establishments with valid permits issued by a relevant regulatory authority.
Training and Recordkeeping
The new rules require carriers to provide awareness training to employees engaged in transportation operations and maintain records documenting this training for twelve months beyond when the procedures are in use. Furthermore, carriers must develop and implement written procedures that discuss: 1) methods for cleaning, inspection, and sanitizing the vehicles and transportation equipment; 2) methods for compliance with temperature control requirements; and 3) method for compliance with provisions for use of bulk vehicles. Carriers must maintain these records for twelve months beyond when the procedures are in use. Other recordkeeping requirements are also listed in the rules.
In sum, it important for motor carriers to be familiar with the requirements in the new rules and to ensure every party is aware of the responsibilities under the contractual agreement between shippers and carriers.