NEHA April 2024 Journal of Environmental Health


code: 1) whether or not a consumer is allowed to use personal containers for food refills and 2) whether or not a consumer can use personal containers for leftover food (in both cases, personal containers means ones brought from home). Washington includes explicit instruc- tions on refilling both consumer-owned and establishment-owned containers in Section 3-304.17 Refilling Returnables and provides a specific update to regulation 4-101.11 for Mul- tiuse Containers (Washington State Depart- ment of Health, 2022). The Oregon food code includes the addition of two new regulations that help detail emerg- ing trends in reusables: a regulation defining a reusable straw is included, along with ver- biage that pertains to third-party cleaning ser- vices (Oregon Health Authority, 2020). Hawaii has included a similar addition—Support Kitchen—that details an operation that explic- itly implies permission for third-party clean- ing services (Hawaii Department of Health, 2017). An adjustment to the definition of food establishment in the Hawaii food code directly references support facilities, which clarifies what language regulates a third-party cleaning service (Hawaii Department of Health, 2017). New York and California have both made extensive changes to the federal codes on which their state codes are originally based and, in many cases, these high-population- density states have improved the clarity of key regulations for reuse and multiuse contain- ers. Moreover, New York provides an adden- dum to 3-304.17 Refilling Returnables for the provision of refillable containers provided by establishments, plus clearer guidance for cleaning them in 4-603.17 Returnables Cleaning for Refilling and 4-101.11 Multiuse Characteristics (New York City Department of Health, 2018; New York State, 2019). In California, key regulations—3-304.16 Con- sumer Self-Service Operations and 3-304.17 Refilling Returnables—have been modified to include language regulating reusable con- tainers. Additionally, the definition of food establishment has been modified to include secondary services, such as storage facilities; this change might also implicitly allow third- party cleaning services (California Depart- ment of Public Health, 2020). Limitations Several important limitations are fundamen- tal to the process by which these data were

collected, as well as scope and time as it relates to policy decision-making and legisla- tive process. First and foremost, the authors are not legal scholars or experts on policy. Policy writing was interpreted on the basis of Aristotelian logic, meaning as is, with conclu- sions as logically followed from the premises written. This process is not always how legal code is interpreted and might not be reflec- tive of the training or the leeway in judgment that individual inspectors possess. Second, policies that were written in doc- uments other than federal and state food codes, specifically and exclusively, were intentionally ignored (sans the occasional city-hosted state regulation, which was some- times required if a state government web- site had broken links). While states tend to include statements on repealed regulation, it is entirely possible that the food codes were not in complete alignment with respect to external legislation or legislation passed since their initial adoption. As such, analysis of additional legislation and regulatory changes, particularly by researchers with policy exper- tise, would be valuable in the interpretation of changes and their context. In terms of general scope, while information gathering in our research was informed by the needs of third-party organizations, there were additional categories and topics that were requested but could not be addressed with the time and resources allotted. As a conse- quence, the database of state codes that houses all of our research might include language on mobile food establishments or reuse in grocery settings; we did not evaluate this language as it could not be confirmed or identified within the time constraints of this project. We were also deliberate in not including inferential sta- tistics in our analysis. Our research is meant to describe the cur- rent landscape of food code policy in the U.S. as it relates to reuse and multiuse containers. Many of the states, however, appeared to be in a period of policy flux, which is likely normal for legislative cycles. Some codes are already changing, or, in other cases, correlative codes may already exist in entirely di‚erent loca- tions that make sense for a state’s internal leg- islative system. The statements of presence or absence in this research apply specifically to food codes alone, as evaluating the entirety of state and federal laws that may pertain to reuse was untenable.

tenance of public health (FDA, 2017). After evaluating 6% of regulations and less than 50% of the definitions in each federal Food Code , however, only two states were found not to have made meaningful changes in their own iterations. The use of language such as “by reference” implies that nearly 50% of the states operate o‚ of an FDA Food Code , but our research does not support that finding. Evaluation of state codes individually could support our findings, but by its own admis- sion, FDA does not conduct these evaluations (FDA, 2023b). Our finding is in contrast to the reason FDA states that it releases Food Code guidelines. In addition, although all the federal Food Code s we evaluated were deemed as at least semi-permissible, many states have made substantial enough changes that they fall below this threshold—in some cases, so far below it that referencing a federal year becomes completely meaningless. Thus, it seems unlikely that a multistate food estab- lishment can e‚ectively navigate a system of di‚erent state food codes, much less enable a layperson to interpret di‚erences in nuance between the federal and state codes. This issue has the potential to lead to widespread violations, disregard for state codes or federal precedent, exploitation of permitting and inspection at the local level, and a lack of uniformity in policy on the part of national or multistate corporate operations. Model Language to Inform Future Policy on Reuse and Multiuse Containers Some of the terminology, definitions, and regulations in the federal code are lacking in terms of content and specificity, particularly that which delineates short- and long-form adoption. We find that many terms require more elaboration to better guide states. Fur- ther, our research has identified a need to survey state food codes to understand where federal guidelines can assist states, as well as compare state food codes and common prac- tices. In the absence of clearer terminology, some states (spanning a broad spectrum of adoption years) have clarified terms and reg- ulations in ways that provide model language that the federal government and other states could implement in the future. As an example, two of our research questions had to be answered implicitly based on legal


Volume 86 • Number 8

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