NEHA April 2024 Journal of Environmental Health


Open Access

A Census of Federal and State Food Codes for Language Involving Reuse and Multiuse Containers

Anthony Michael Lomando, MS Center for Biological Diversity Kelley Dennings, MPH Center for Biological Diversity

Food Code versions in a way that did not nec- essarily follow any trend involving region or population density. Next, we assumed that the FDA phrasing of “adoption by reference” was equivalent to the legal term “incorpora- tion by reference.” We then turned our eorts to analysis of state food codes that were listed as having adopted a federal Food Code “sec- tion-by-section” (FDA, 2023b). After completion of this stage, we found that “by reference” does not appear to be interpreted as we had assumed, and thus, we completed a full census of those states that mention they used “adoption by reference.” What follows is an explanation of the process we used to evaluate the codes and the data we found representing the actual landscape of federal and state food codes with respect to reuse and multiuse of containers. Our research is descriptive and is not intended to make legal declarations. The pur- pose of our study is to describe the current (as of writing, and in conjunction with the following dates listed) landscape of federal and state food code policy in the context of reuse and refillable containers, as evaluated and interpreted by us. Many past federal Food Codes are >700 pages each. State food codes range from tens to hundreds of pages and likely average >100 pages each. Broadly speaking, survey- ing these codes and policies encompassed nearly 10,000 pages of research. As such, it is likely things were missed, which was also justification for stopping at the level of the published state food code. States can issue variances, release additional regulations, and remove content while codes are being reworked. We did not consider it feasible to evaluate below this level given the available time and resources.

b=>r-/> In our research study, we surveyed national food code policy related to reuse and refillable containers. The purpose of this research is to improve access to information for multistate organizations that pursue related conservation opportunities. The landscape of food code policy in the U.S. spans six federal codes that theoretically serve as the basis for all state codes. In creating this census, the ineciency of the current system was identified regarding the quantity and nature of the changes that states make to federal codes. Overall, 6% of regulations and 44% of definitions were sampled. We found that only two states did not meaningfully deviate from federal guidelines. Moreover, the definition of “food establishment” was changed >84% of the time. Furthermore, 65% of states were rated as permissible in their policy regarding reuse and refillable containers, 18% as semi-permissible, and 18% as non-permissible. States with older codes were substantially more likely to be semi-permissible or non-permissible. Keywords: food code, reuse, refillables, multiuse, containers, conserva- tion policy

Introduction Food code policy in the U.S. involves a com- plicated, interconnected web of laws, regu- lations, variances, and policies thatcan be a challenge to access and interpret, which in turn can impede eective policy implemen- tation. The Food and Drug Administration (FDA, 2023a) has released a nonmandatory federal guideline suggesting food code pol- icy approximately every 4 years for the last two decades. States are not legally obligated, however, to incorporate this code into their own system of policy, and FDA—by its own admission—does not conduct any compre- hensive review of state codes for compliance, legality, or uniformity (FDA, 2023b). Metrics provided in an FDA annual report on adop- tion status and method are based on infor-

mation self-reported by individual states and default to each state’s last reporting (FDA, 2023b). As a result, a major finding of the census in our study is that these reports are not representative of the current landscape of U.S. food code policy, with discrepancies that range from general mistakes and gen- erous interpretations of the language used (e.g., adoption by reference) to inaccuracies in posted metrics, particularly several related to adoption rate and year. The initial purpose of our research was to review federal guidelines to identify language that might be beneficial regarding reuse and multiuse of food service containers to benefit conservation eorts. We quickly discovered, however, that state adoption of the regula- tions involved spanned six dierent FDA


Volume 86 • Number 8

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