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FDA Food Code Updates: Good News for Food Donors and Pooches on Patios

By Emily Sampson  |  March 30, 2023

Updates to the Food and Drug Administration’s Model Food Code, the agency’s comprehensive guidelines on food service best practices, may help states better manage the evolving retail food landscape.

Among other revisions, the guidelines now allow food donation; require food handlers to have allergen training (including for sesame, a newly listed immune trigger); and allow animals in food facilities under certain circumstances—meaning your four-legged friend might be able to join you for brunch on the patio at your favorite neighborhood spot. (Use the NCSL Food Code Adoption tracking tool to find out what version of the code your state has adopted.)

The FDA typically updates the code every four years and did so most recently in January. While the code doesn’t have the force of law or regulatory effect, it includes recommendations on the handling and safety of food that can be adopted by state, local, tribal and territorial agencies to regulate retail establishments. Once adopted, it helps jurisdictions standardize food safety throughout the service process, from hygiene and food handling to storage and equipment protocol.

Food Resources

Updates to the code come in response to recommendations made at the nonprofit Conference for Food Protection’s biennial meeting, which brings together a variety of food industry, government, academic and consumer stakeholders. One recommendation grew out of the pandemic. As people shifted to dining outdoors, whether on patios or in individual structures, they wanted to bring along their furry friends. The code’s new language allows for dogs in outdoor retail dining but leaves it to state and local governments to decide on implementation and enforcement.

Another change in the code addresses donated food. For decades restaurants, hotels and other food establishments have disposed of large amounts of food, rather than donate it, over concerns about facing legal repercussions. Recently enacted legislation in Hawaii (SB 244; 2021) cites legal liability as a factor in limited food donations and expands protections to encourage more of it.

As states across the nation boost liability protections for food donation and begin to tackle food waste, new resources in the food code’s annex cover aspects of food recovery at every stage: donation, receipt and oversight.

State Actions

In support of state actions on this topic, NCSL tracks legislative activity on food code adoption, food safety and donation. State legislation on food donations, for example, has largely focused on liability protections and tax credits. Alaska lawmakers (HB 186; 2017) expanded liability protections to charitable organizations and stated that donors can include delicatessens, restaurants, hotels and stores. Connecticut is currently considering a proposal (HB 5577) allowing commercial food wholesalers and distributors, food manufacturers and processors, supermarkets, resorts and conference centers to adopt policies designed to reduce food waste. Both chambers of the Virginia General Assembly passed a measure (HB 2445) this year that would renew the Wholesome Food Donation Tax Credit, increasing the allowed credit to 50% of the fair market value of food donated and doubling the total annual allowable credit to $10,000. The bill has been sent to the governor.

NCSL tracks legislative action on food codes and food safety in the Environment and Natural Resources State Bill Tracking Database.

Emily Sampson is a policy analyst in NCSL’s Environment Program.

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