While state legislators work on a variety of issues related to food, one of the foremost concerns is food safety. In recent years, legislatures have reviewed many aspects of food safety, from the adoption of the U.S. Food and Drug Administration (FDA) food code to state implementation of the Food Safety Modernization Act. From 2018 to 2021, states introduced thousands of bills related to food and food safety, reflecting states’ interest in providing oversight and increasing public safety.
Each year, around 48 million people in the U.S. get sick, 128,000 are hospitalized, and 3,000 die from foodborne diseases, according to recent data from the Centers for Disease Control and Prevention. Both Congress and the states continue to explore policies that will provide safety without compromising choice.
In 2010, Congress enacted the Food Safety Modernization Act (FSMA), the most comprehensive food safety legislation since 1937. The law changed many of the regulatory structures designed to protect the public from foodborne illness and updated the Food and Drug Administration’s (FDA) authority to regulate foods. The FSMA enables FDA to proactively regulate the food industry by designing measures that prevent foodborne outbreaks from occurring. Most importantly for states, the FSMA directs the FDA to build an integrated national food safety system in partnership with state and local authorities. State adoption of the FDA Food Code is a key part of ensuring states’ food safety regulations reflect updated data surrounding food safety issues and remain current with other federal laws.
Given the volume of meat and dairy consumption in the U.S., many states have sought to enhance safety of the products being sold to consumers. For example, states have considered requiring disclosures for carcasses and certain cuts of meat being offered for sale and have limited the sale of meat to exclude animals like deer and horses. States have also bolstered requirements regarding meat and poultry processing and inspection. Pasteurization is used in the dairy industry to kill bacteria and increase the shelf life of milk and cheese, but a fair number of consumers prefer unpasteurized dairy products to reap the benefits of healthy bacteria. States have increasingly considered legislation to allow the sale of unpasteurized milk and dairy products, while also introducing legislation to increase consumer safety by requiring labels on unpasteurized products that clearly indicate the product contains raw milk.
As plant-based products have grown in popularity, states have increasingly considered legislation related to the labeling of meat and dairy alternatives. For example, states have sought to regulate the language that can be used to identify alternative proteins by enacting “truth in labeling” laws that prohibit products from containing the word “meat” if they are not derived from livestock or poultry. While cell-cultured meat is not readily available for purchase yet, states have already looked to address how these products can be labeled, such as by enacting bills to prohibit cell-based products from being represented as meat.
Beyond food safety, states have also acted on issues such as food waste and donation, the labeling of food products as noted above, and cottage foods, among other areas. State action around food waste has largely focused on shielding donors from liability arising from food donation, adjusting labeling to communicate safety dates and diverting food waste from landfills.
Cottage food laws provide regulatory relief to small, kitchen-based operations, allowing vendors to sell their products absent food safety requirements required for commercial food kitchens. The laws provide guidance to homemade food producers and provide for some exemptions from the food safety requirements that apply to food made in commercial kitchens. Many of these bills eliminate licensing and inspection requirements for homemade food and beverages, while some establish labeling requirements for products that have been made in a home kitchen. Some of these bills also address the online sales and shipping of cottage foods.
In recent years, states have introduced legislation to enhance the safety of food delivery services. For example, states have sought to require food delivery platforms to transport food in a manner that protects it from contamination and to ensure that delivery drivers are trained on specific aspects of food handling, such as maintaining proper food temperatures. Further, states have considered legislation to prohibit food delivery drivers from smoking tobacco products while engaged in food delivery.
As the retail food landscape continues to evolve, states are facing new threats and opportunities. In response, they are looking to established regulatory frameworks to help keep consumers safe.
Expand the following tabs to learn more about the Food Code and see what version of the Code your state is currently operating under.
Food Code Adoption
Adopting the latest version of the Food Code helps states become proactive rather than reactive when it comes to tackling foodborne illnesses. While it might not be top of mind, according to International Food Information Council’s 2021 Food & Health Survey more than 50% of Americans consider foodborne illness a top safety concern. States can bend the curve of foodborne illness and streamline the enforcement process through a variety of mechanisms, including adoption of the most modern food safety standards.
Check the map below to see if your state has adopted the most recent version of the FDA Food Code. The development of this map was supported by the Retail Food Safety Regulatory Association Collaborative. NCSL in partnership with the National Environmental Health Association, created this resource for states to quickly see if they have adopted the latest version of the FDA Food Code, which provides a technical and scientifically based approach for regulating the retail and food service establishments including restaurants, grocery stores and institutions.
This map reflects Food Code adoption as of November 2021. Certain states have multiple agencies that regulate retail food safety and may use different versions of the Food Code. For more detailed information and to access tools and resources to help modernize retail food safety programs in your jurisdiction, go to the Retail Food Safety Regulatory Association Collaborative’s Food Code Adoption Toolkit.
Economic Impacts of Foodborne Illnesses
The U.S. Department of Agriculture’s (USDA) Economic Research Service (ERS) has estimated the cost of foodborne illnesses from 15 major pathogens that are responsible for more than 95% of illnesses and deaths from foodborne illnesses. ERS’ mean estimate of the total annual cost of foodborne illness from noroviruses in 2013 was over $2.2 billion (U.S. Department of Agriculture, 2017). Overall, the economic impact for foodborne illness associated with the 15 pathogens studied was calculated to be $14.1–$15.2 billion annually (USDA, 2017).
A Salmonella outbreak in onions in October 2021 was linked to 892 illnesses in 38 states and Puerto Rico. USDA’s ERS estimates that from 2013 to 2018, three pathogens, salmonella, toxoplasma, and listeria, were responsible for more than 60 percent of the economic costs associated with foodborne illnesses, with salmonella contributing to $4.1 billion in costs.
While it may not be possible to eliminate foodborne illnesses, states can take steps to help reduce the likelihood of an outbreak. For example, the most recent version of the FDA Food Code is designed to control/prevent foodborne illnesses at the retail level and can increase states’ ability to control foodborne illness in restaurants. As the retail food industry evolves, the FDA Food Code is updated with evidence‐based methods for combatting risk factors related to foodborne illness.
Uniform adoption of the Food Code can likely reduce costs for restaurants, states, consumers and the country. Despite this, only about one-quarter of states have adopted the latest version of the Food Code.
Food Safety Modernization Act
The Food Safety Modernization Act requires the FDA to work with state and local governments to build their food safety and food defense capabilities, including providing additional resources for state food safety programs. Further, the FDA is directed to work with states and local health programs to determine the best approach to addressing surveillance and tracing back of foodborne outbreaks.
The act primarily addresses regulatory gaps at the FDA and does not place a burden on the states. States are not required to perform any of its provisions nor does the law supersede state law. Food producers and processors still must follow state rules, in addition to the new FDA requirements. Because the FDA has not promulgated its regulations, no case can be made that their rules conflict with any state rules. There may be a likelihood of duplication of efforts, however, between the state standards and the FDA requirements once the rules are promulgated.
To learn more about the effect of FSMA on states, visit NCSL’s resource on the Food Safety Modernization Act.
Forty percent of the food produced in the U.S. is wasted, which translates to $162 billion in annual waste. In a country in which nearly 50 million Americans face food insecurity, it’s estimated the equivalent of 58 billion meals go to waste each year.
Waste occurs throughout the supply chain—from farms (16%), manufacturers (2%), businesses (40%) and households (43%). Food waste is about more than what goes into the trash. Getting food from farm to fork takes extensive resources—energy, land and water. The U.S. spends $218 billion each year to grow, handle, deliver and dispose of uneaten food.
Food waste is also the largest component of municipal landfills. In addition to taking up space, decomposing food releases methane, a powerful greenhouse gas.
Fortunately, food waste is a problem with solutions. State and federal laws, as well as efforts by businesses, organizations and consumers, can reduce the amount of food that goes to waste, helping to conserve natural resources, create economic opportunities and feed the hungry.
To learn more about state and federal policy options to reduce food waste, visit NCSL’s resource on Fighting Food Waste.