State and Local Food Regulation | jgersen | February 11, 2016


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State and Local Food Regulation

by jgersen Show/Hide

Absent private rights of action to enforce federal food safety laws and given the limited resources of federal agencies relative to the sheer volume of food and food facilities, the state and local law often serves as the front line in the fight against food safety. By nature, state and local legal requirements vary from jurisdiction to jurisdiction. Nevertheless, the basic structure and allocation of oversight and enforcement authority is relatively consistent across states.

The regulation of retail food sales and distribution has been left largely to the states.  Some states delegate lincensing and inspection to local government units, while others do not.  Restaurant inspection, food trucks, farmers markets, and grocery stores are all largely controlled by state and local law.  This section contains and illustrative set of cases and legal materials.


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  1. 2 Show/Hide More Model Food Code
    Original Creator: jgersen

    Although the ultimate responsibility for promulgating and enforcing state and local food laws lies with the states and municipalities, the FDA has long taken a leading role by providing guidance to states. Contrary to the conventional view the states provide “laboratories of democracy” in which different laws and policies can be implemented and evaluated, in food law there is a surprising amount of uniformity and consistency.

    At least since the 1920's with FDA's Guidance on milk pasteurization, FDA has provided guidance on virtually every segment of the retail food industry. In 1993, FDA issued the first full incarnation of its comprehensive Food Code, the most recent incarnation of which was issued in 2013.

    1. 2.1 Show/Hide More Model Food Code (2013 Preface Excerpts)
      Original Creator: jgersen
      <p>1. Adoption. All fifty staes have adopted food codes patterned after the Food Code. See Real progress in Food Code Adoption, US <span class="caps">FDA</span> (2011). Some states adopt a version of the code by reference. others directly enact into into statute, regulation, or ordinance.</p> <p>2. Updating. The Federal Food Safety Working Group was convened by President Obama in 2009 to develop strategies for improving food safety. Part of the difficulty is that while the <span class="caps">FDA</span> updates the Food code every couple of years, states tend to fall behind as changing state and local law requires affirmative actions from legislators or regulators whose agendas are already quite full. State and local officials regularly cite the frequent changes to the Food Code as obstacles to its uniform implementation.</p>

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