NEHA April 2024 Journal of Environmental Health

As such, short-form adoption should indi- cate the subsumption of the federal code into the state code. FDA (2017), however, shifted this meaning by stating: The recommended method is the “short form” or “adoption by reference” approach where a simple statement is published stat- ing that certified copies of the proposed code are on file for public review. . . . The alternative method is the “long form” or “section-by-section” approach where the proposed code is published in its entirety. A disclaimer is also included that allows modification to accommodate existing law. Given the typical use and definition of these terms, this choice of words is lacking. It is not unreasonable to assume that, in listing adop- tion methods in its annual report, FDA is indi- cating that adoption by reference is suggestive of states subsuming the federal code of a given year into their own. Following this logic, states that make changes and edits to their food code have instead incorporated it section-by-section and should report as such. We found that only two states, Arizona and North Dakota, incorporated the complete federal code into their own without modifi- cation—and this finding was made while exploring only a small sample of each code (roughly 6% of the total quantity of regula- tions and between 40% and 45% of the total quantity of definitions) in depth based on our research questions (Table 1). Some of these changes were small, such as an extension of a definition to include or exclude examples. Other changes were more substantial, such as adjustment of a citation within a regula- tion to a di¡erent regulation, or the complete and total overhaul or omission of a regulation or definition. In all instances, however, there was some measure of di¡erence in mean- ing between federal and state codes that was attributable to state-based changes. The FDA decision to use terms with other- wise-accepted meanings has led to a confus- ing and sometimes contradictory patchwork of policies. An initial look at codes side-by- side, however, might not reveal a substantial di¡erence. Regulations might be identical or their changes entirely based on formatting, which would be in rough alignment with the way that this phrasing is normally used. This practice, though, could obscure changes to other portions of the code that fundamen- tally alter the meaning of the regulations


Changes and Omissions in the Federal Food Code by Year Adopted

Food Code Year Regulations 2017

# of Regulations # Sampled for Relevance

% of Total

% of Sample Changed

391 391 389 386 387 387 120 118 118 116 102 102

23 23 25 25 25 25 48 48 48 48 44 44

5.9 5.9 6.4 6.5 6.5 6.5

52.2 39.1 76.0 32.0 80.0 48.0 68.8 39.6 70.8 70.8 86.4 27.3

2013 2009 2005 2001


Definitions 2017

40.0 40.7 40.7 41.4 43.1 43.1

2013 2009 2005 2001


*Was not able to secure a copy of the 1995 Food Code ; used the 2001 version as the basis.

Finally, this article represents a snapshot in time as opposed to an ongoing directory. Research began in September 2021. All state- ments on food codes referenced herein were monitored for updates until December 2022. Moreover, in the final days of December 2022, a new federal Food Code was released, which we did not use in our analysis for sev- eral reasons. First, it is rare that states imme- diately adopt the most recent version of the federal Food Code . Incorporation of a new policy takes time. Second, an assessment of the summary of changes did not indicate that any policies relevant to our research were made. As such, it is likely that any conclu- sion of our research that applies to the 2017 Food Code also applies to the 2022 Food Code . Short-Form and Long-Form Adoption of the Federal Food Code Per FDA, the stated purpose of the federal Food Code is to provide a uniform guide- line for states that aligns with federal law to ensure the health and safety of the U.S. retail food system (FDA, 2017). This rationale is rooted in regulatory history that is more than 100 years old but still presents with valid- ity—that is, industry left to its own devices in a system driven by profit tends not to

put public health and wellness first (Young, 2018). The released codes and their well- researched justifications, available as annexes to the federal Food Code , are adopted piece- meal by many states and not at all by some (FDA, 2023b). FDA has stated in its codes and annual reports that it does not verify that states are adhering to these findings, nor do they review state codes for compliance (FDA, 2017, 2023b). One example is the under- standing of the distinction between short- form and long-form adoption. In theory, some states adopt the federal code in short form and others in long form. Short form is adoption of the code by refer- ence, whereas long form is adoption of the code section-by-section. To incorporate by reference, as defined by the Legal Informa- tion Institute (2022), is to: Make a secondary document [e.g., the federal code] a part of a primary docu- ment [e.g., a state food code] by includ- ing a statement that the second document is combined with the primary document. It is commonly used to draft one text or sentence to refer to another text. By doing this, the receiving text would treat the incorporated text as though it were entirely integrated.


April 2024 • our9-l o2 9@5ro9me9>-l e-l>4

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