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Food preparation; Food Code

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Introduction to Food Law
Overview of US Food Law
Government "Players" Involved in US Food Law
Requirements for Food Businesses

Producer/Processor/Preparer Liability
Looking Forward/Future Issues


Food Retail and Food Preparation/Service Sector

Purpose of this page is to address safe food preparation, including the food code and education for at-home preparation.

At this point in the procession of our food, the next step is final preparation; that is, the previous sections address production of agricultural commodities and processing of commodities into food products.

For food that is prepared and consumed at home, there are two steps - consumers purchase the food at a retail store and prepare it at home. For food that is eaten away from home, the final step primarily involves entities preparing the food for others to consume; these entities include restaurants, delis, and institutions such as schools, hospitals, and nursing homes.

For the food that is eaten away from home, the primary legal document addressing how the food is prepared is the Food Code; for foods that will be prepared at home, the final steps involve labeling, grocery store operation, and consumer education about nutrition and safe preparation.

Regulation of retail food/gocery stores and food service entities is primarily the responsibilities of the states. Federal agencies are not authorized to regulate grocery stores, restaurants, institutional cafeterias, and other retail businesses. However as will be explained in the section, FDA has a major impact on the regulation of this sector of the food industry.


Licenses to operate a food processing facility/establishment

States often require retail food establishments to be licensed by the state. For example:N.D.C.C. 23-09-16. "Before any food establishment, lodging establishment, or assisted living facility may be operated in this state, it must be licensed by the department."

Food establishment is broadly defined, for example, N.D.C.C. 23-09-01. Definitions.

2. Bakery
3. Commissary
5. "Food establishment" means any fixed restaurant, limited restaurant, coffee shop, cafeteria, short-order cafe, luncheonette, grill, tearoom, sandwich shop, soda fountain, tavern, bar, catering kitchen, delicatessen, bakery, grocery store , meat market, food processing plant , or similar place in which food or drink is prepared for sale or service to the public on the premises or elsewhere with or without charge.
6. Food processing plant
7. Limited restaurant
9. Mobile food unit
11. Pushcart
12. Restaurant
13. Retail food store
14. Retail meat market
16. Temporary food service establishment"

Note the breadth of businesses encompassed by this law.

Also see N.D.A.C. §33-33-04-01 (33). "Food establishment":

a. "Food establishment" means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption:

(1) Such as a restaurant, satellite or catered feeding location, catering operation if the operation provides food directly to a consumer or ... and
(2) That relinquishes possession of food to a consumer directly, or indirectly through a delivery service ...

b. "Food establishment" includes:

(1) An element of the operation such as a transportation vehicle ... and

(2) An operation that is conducted in a mobile, stationary, temporary, or permanent facility or location ...

c. "Food establishment" does not include:

(1) An establishment that offers only prepackaged foods that are not potentially hazardous;
(2) A produce stand that only offers whole, uncut fresh fruits and vegetables;
(3) A food processing plant;
(4) A kitchen in a private home if the food is prepared for sale or service at a function such as a religious or charitable organization’s bake sale;
(5) A private home that receives catered or home-delivered food.

General Requirement

Food establishments are required to operate to assure the product they sell is safe for the consumer. For example, N.D.C.C. 23-09-09: "Every food establishment, lodging establishment, and assisted living facility must be operated with strict regard for the health, safety, and comfort of its patrons. The following sanitary and safety regulations must be followed: ..."

State law generally provides considerable detail in how the food establishment must operate. For example, see N.D.A.C. chapter 33-33-04 Food Code.

Additional Selected Requirements

N.D.A.C. §33-33-04-137. "Submission of plans. Whenever a food establishment is constructed or extensively remodeled, and whenever an existing structure is converted to use as a food establishment, properly prepared plans and specifications for such construction, remodeling, or conversion must be submitted to the department for review and approval before  construction, remodeling, or conversion is begun... No food establishment may be constructed, extensively remodeled, or converted except in accordance with plans and specifications approved by the department."

N.D.A.C. §33-33-04-138. Preoperational inspection. Whenever plans and specifications are required by section 33-33-04-137 to be submitted to the department, the department shall inspect the food establishment prior to the start of operations to determine compliance with the approved plans and specifications and with the requirements of this chapter.

N.D.A.C. §33-33-04-01.1. Intent - Scope. The purpose of this chapter [food code] is to safeguard public health and to provide consumers with food that is safe, unadulterated, and honestly presented. This chapter establishes definitions; sets standards for management and personnel, food operations, and equipment and facilities; and provides for food establishment plan review, license issuance, inspection, and employee restrictions...


Food Code

As stated previously, federal government does not regulate food establishments; that is the responsibility of the states. However, FDA has developed and offered a food code to states as suggested or recommended requirements that the state may adopt. The benefits of the food code are 1) uniform requirements among the states and 2) reduced cost for states in researching and developing detailed retail and food service regulations.

  • The Food Code governs food service industry and retail food stores with deli's; the Food Code does not address food processing facilities.
  • FDA Model Food Code
    • FDA 2009 Food Code -- is not a federal law; it is FDA's suggestions to the states for the states to consider adopting.  The suggestions, however, are based on a variety of federal statutes and regulations.  North Dakota, South Dakota and Minnesota have promulgated a food code in the form of state regulations. These regulations are based heavily on the FDA's recommended food code.
    • North Dakota Food Code (introduced above)
    • Minnesota Food Code
    • South Dakota Food Service Code
  • The food code is enforced by state health department or agriculture department in most states.
  • Food code was drafted September 1998 and offered to the states at that time; states began adopting the code thereafter.
  • Food code is designed to provide a uniform approach to food safety regulation; this is a benefit to interstate commerce. The food code also helps the states by eliminating their need to "start from scratch" to develop a food code.


Provisions of the Food Code:

  • Note the broad definition of food establishment -- N.D.A.C. §33-33-04-01(33) and N.D.C.C. §23-09-01(5).
  • The purpose of the Code is to help assure that, as food is prepared for consumption, it is unadulterated and honestly presented. This is a continuation of the theme that food not be adulterated or misbranded. Restated, this is a continuation of the theme that food must be safe and that consumers have accurate information so they can make informed decisions about what they consume.


  • Topics addressed in the Food Code:

    Personnel:  responsibilities, required knowledge, and duties of supervisors; • assuring the food employees are healthy; • assuring the cleanliness of food employees, including hands and arms, fingernails, jewelry and outer clothing; • assuring that food employees follow hygienic practices to prevent food contamination, including hair restraints; • presence of animals

    Food:  assuring the condition of the food; • documenting sources and specifications for receiving food; use of original containers; • maintaining records; • preventing food and ingredient contamination; • preventing contamination by employees, from ice used as a coolant, from equipment, utensils, and linens, from the premises, by consumers, or from other sources; • cooking, freezing, reheating, and other methods to destroy organisms of public health concern; • temperature and time control, and specialized processing methods to limit growth of organisms of public health concern; • accurate representation and labeling of food; • consumer advisories; • disposition of contaminated food; • additional safeguards for highly susceptible populations

Equipment, Utensils, and Linens:  materials for construction and repair of multiuse, single-service and single-use equipment, utensils, and linens; • design and construction of equipment, utensils, and linens to assure durability, strength, cleanability, accuracy, functionality, and acceptability; • number and capacity of equipment, utensils, temperature measuring devices, and testing devices; • location and installation of equipment and utensils; maintenance and operation of equipment, utensils and temperature and pressure measuring devices; • cleaning of equipment and utensils – objective, frequency, and methods; • sanitization of equipment and utensils – objective, frequency, and methods; • laundering – objective, frequency, and methods; • protection of clean items – drying, lubricating, reassembling, storing and preventing contamination.

Water:  source, quality, quantity, availability, distribution, delivery, and retention of water; • plumbing system materials, design, construction, installation, capacity, location, placement, operation and maintenance; • mobile water tank and mobile food establishment water tank materials, design, construction, capacity, operation and maintenance; • sewage, other liquid waste, and rainwater -- mobile holding tank, retention, drainage, delivery and disposal facility; • refuse, recyclables and returnables facilities, removal, disposal and recycling

Physical Facilities:  materials for construction and repair of indoor and outdoor areas; • design, construction, and installation of physical facilities to assure cleanability and functionability; • number and capacity of handwashing sinks, toilets and urinals, lighting, ventilation, dressing areas and lockers, and service sinks; • location and placement of handwashing sinks, toilet rooms, employee accommodations, distressed merchandise, refuse, recyclables, and returnables; • maintenance and operation of premises, structures, attachments, and fixtures

Toxic Materials:  labeling and identification of original containers and working containers of poisonous or toxic materials; • storage, presence and use of operational supplies; • prohibited use of containers; • storage and use of chemicals, lubricants, pesticides, medicines, first aid supplies, and other personal care items; • storage and display of stock and retail sale

Compliance and Enforcement:  use of food code for intended purpose, additional requirements, and variances; • submission, approval, and confidentiality of facility and operating plans; • construction inspection and approval; permit to operate requirement; • application procedure, issuance, and retaining a permit to operate; • frequency of inspections, access for inspectors, report of findings; • correcting imminent health hazard, violation of critical item, and noncritical violation; • investigation and control to prevent transmission of foodborne disease by employe


Some General Comments about the Food Code

  • The Code incorporate elements of HACCP -- imposes responsibility for developing a plan for safety analysis on the business.
  • Requires firms to develop individual HACCP plan.
  • The Code addresses concerns about storing food, cooking food, and other practices
  • The Code also addresses concerns about facilities, equipment, utensils and materials
  • Requires firms to have an employee who has Food Manager Certification
    • All establishments preparing and/or serving food need a certified food manager
    • The food manager must take an approved training course and pass the qualification exam
    • Food manager must apply for certification, e.g., to the MN Dept. of Health
  • The Code also includes several Annexes, for example
    • Annex 4 -- Management of Food Safety Practices -- includes an overview of HACCP and the five broad categories of contribtuors to food borne illnesses
    • Annex 5 -- Conducting Risk-based Inspections
    • Annex 7 -- Model Forms, Guides and Other Aids -- including employment and inspection forms


FDA's role in the food retail sector is expanding, primarily due to events since the middle of the first decade of the 21st century, that is, about 2005.  The following list identifies additional FDA resources.

Note the "voluntary" nature of these efforts.  FDA has no authority to impose mandatory standards, but it certainly is taking an active role in offering suggestions. State and local governments do have the authority to impose mandates; it is likely that many of the state and local mandates will reflect the FDA's suggestions.


Do not overlook the role of USDA inspections of schools participating in the National School Lunch program; see http://www.fns.usda.gov/cnd/Guidance/



Other Topics

Home-Prepared Food


Summary of Key Points

  • Regulation of the retail is the responsibility of state and local governments, but the federal agencies (such as FDA) play a significant role by offering suggestions as to what the state and local governments may want to mandate.
  • HACCP, employee training, and facility security are only several of the topics that government is directing the retail sector to address.
  • Consumers are not regulated; society (through government) attempts to influence consumers through educational programs.

Last updated May 3, 2010

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