NEHA April 2024 Journal of Environmental Health

including a caveat that they remained synon- ymous with food establishment when used in the state code; this change was done without altering the remainder of the terms through- out the rest of the code, which causes signifi- cant problems with respect to interpretation (Wisconsin Department of Health Services, 2013). Another state modified the definition title to establishments and included cosmet- ics sales (Wyoming Department of Agricul- ture, 2012). There was also a substantial di›erence in the actual quantity of changes and omis- sions of the sample by state (Table 4). For example, four states had changed >50% of the sampled definitions and regulations regarding reuse and multiuse containers rel- ative to the federal code on which they are reportedly based: Alaska, Louisiana, New York, and Maryland). Another six states (California, Georgia, Nevada, New Jersey, South Dakota, and Vermont) had changed between 20% and 50% of the sampled defi- nitions and regulations relative to their fed- eral adoption year. Furthermore, eight more states changed between 10% and 20% of the sampled definitions and regulations. And 10 out of the 12 states that had changed >20% of their food code relative to sampled regu- lations were still on adopted federal codes dating from 2009 or earlier. With respect to key regulations, those most vital to answering our research questions for reuse containers were changed or omit- ted from 15% to 84% of the time by states (Table 5). The section of the Food Code that was expected to be seen 18 times (used as a reference for those states operating o› of the 2009 Food Code or earlier)—Returnables, Cleaning for Refilling—was omitted 5 times and changed 4 times. The remaining 11 key codes and terms were expected to be found within all states investigated. The definitions for Food Establishment and Food Process- ing Plant, which directly determine to whom the code applies and under what conditions, were changed or omitted by states 84% and 41% of the time, respectively. The primary code that determined whether or not an item could be refilled—Refilling Returnables— was found to have been changed or omitted >21% of the time. It is worthwhile to note that in some instances, the changes reflected by states were positive with respect to reuse and multiuse containers.


Federal Food Code Key Regulations and Definitions by Frequency of Changes and Omissions by States

Regulation or Definition

# of Times Noted

# of Times Omitted

# of Times Changed

% Omitted

% Changed

% Omitted and Changed

Food Establishment

51 18 51 51 51 51 51 51 51 51 51 51

0 5 3 4 0 1 3 1 0 2 0 0



84.3 22.2 35.3

84.3 50.0 41.2 21.6 15.7 11.8




Food Processing Plant




7 8 5 2 4 3 1 1 0


13.7 15.7

Easily Cleanable 3-304.16A–C Safe Material Single-Service Articles 4-101.11A–E Single-Use Articles


2.0 5.9 2.0

9.8 3.9 7.8 5.9 2.0 2.0

9.8 9.8


5.9 5.9 2.0



0 0

Food Contact Surface



of the time. This finding is important for two reasons. First, approximately 41% of states reported as short-form or adoption by ref- erence (FDA, 2023b). The indication that a small sample of data is reflective of a wide variety of changes contradicts this reporting by states. Second, changes to the definition of a term such as Food Establishment, which defines the target population of the majority of the remainder of the code, could lead to term confusion, target party conflation, and unin- tended separation of regulated parties that were not completely in alignment with the federal code or the remainder of the regula- tory writing. Some states made small but meaningful adjustments, including or exclud- ing additional examples or striking a single subsection from the definition. Other states waived the original definition of food estab- lishment, changing its title or the entirety of its contents. At least one state changed the definition of food processing plant to be syn- onymous with food establishment and also changed the definition of food establishment to be an assortment of three other intercon- nected but loosely defined terms, though still

relevant to key regulations. The presence or absence of sampled regulations, in addition to this modifier, allowed us to use a scoring system in determining whether or not a state could be classified as permissible, semi-per- missible, or non-permissible with respect to policy about reuse and multiuse containers.


Describing the Nature and Frequency by Which States Change Codes In total, of the 25 regulations and 48 defini- tions studied related specifically to reuse and multiuse container policy, we found only 2 that were not changed across the codified landscape: the definitions for Food Contact Surface and Utensil. Overall, 10 terms or regulations—including Food Establishment; 4-603.17 Returnables: Cleaning for Refilling; Food Processing Plant; Public Health Protec- tion; and 3-304.17 Refilling Returnables— were changed >20% of the time. Another 23 terms or regulations—includ- ing Foodborne Disease Outbreak, Immi- nent Health Hazard, Risk, Easily Cleanable, Restrict, and Variance—were changed >15%


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

Powered by