We cannot rely on beef and fresh produce companies to police themselves.  Restaurants are sometimes inept, caring more about customer count than safety.  The U.S. Department of Agriculture’s Food Safety and Inspection service (FSIS) and the U.S. Food and Drug Administration (FDA) are ill equipped to do it all alone.  And the 50 states, which currently operate independently and without a centralized command or mandate, sometimes lack consistency in their regulatory schemes.

Despite the patent risks, twenty-four states do not require that retail food service establishments use pasteurized eggs in items that typically contain raw eggs; and raw milk, again despite the patent risks associated with the product, is legal to sell in a number of states; legal to sell with restrictions in a few more (e.g. Washington, where the seller has to be a properly licensed dairy); and flat against the law to sell in other states.  

It is time for greater uniformity in our regulatory system.  There are more than three thousand state, local, and tribal agencies responsible for regulating the retail foodservice industry, which includes over a million foodservice establishments in the United States.[1] It is time for a federal mandate making the FDA’s Model Food Code (the Code) compulsory as a baseline regulatory scheme on all states, territories, and tribal jurisdictions.  The FDA apparently agrees:  “Adoption of the Food Code represents a successful federal/state/local partnership in improving food safety.”[2]

FDA and [the Association of Food and Drug Officials’] goal is the prevention and reduction of foodborne illness and death from food produced at the retail level. Adoption of the Food Code by all food safety agencies at the federal, state, local and tribal levels establishes a sound regulatory foundation and legal framework for uniformity in achieving such a reduction. [Id.]

In fact, most states have already spoken, in a way, about such a move.  In its introductory comments about the Code, the FDA states that “48 of 56 States and territories have adopted food codes patterned after one of the five versions of the Food Code, beginning with the 1993 edition. Those 48 states and territories represent 79% of the U.S. population.”  It is thus readily apparent that many of the States and territories think the FDA got it right–or at least got it right in the code version that they have chosen to adopt.  And that should be the states’ position.  As the FDA states on its website, the Code is:  

[A] model that assists food control jurisdictions at all levels of government by providing them with a scientifically sound technical and legal basis for regulating the retail and food service segment of the industry (restaurants and grocery stores and institutions such as nursing homes). Local, state, tribal, and federal regulators use the FDA Food Code as a model to develop or update their own food safety rules and to be consistent with national food regulatory policy.[3]

The utility of mandating implementation of the Code is simply that it would require adoption of a solidly science-based approach to food safety.  The Code is an amalgam of sorts, created by the FDA with input from the Centers for Disease Control and Prevention and FSIS, which is the branch of the USDA responsible for ensuring the safety of meat, poultry, and egg products.  The Code represents the FDA’s best practices to ensure that food at retail is safe and properly prepared.

There are many advantages to adopting uniform standards for food safety.  First, when regulatory officials agree on one set of acceptable procedures and practices, industry is more likely to comply.  Not only is there less confusion as to what safeguards should be used, but there is greater confidence in those procedures because they are endorsed by federal government and are scientifically sound.  Along the same lines, nationwide adoption of the same baseline standards will streamline the often complex process of employee training, particularly for national restaurant chains that currently must account for many different regulatory schemes.  

Second, mandating the standard alleviates the burden from local and state governmental bodies of having to develop and update their own codes.  Instead, these entities would be able to focus their resources on implementing and enforcing the Code.  

Third, the Code is more likely to be consistent with the federal performance standards that are already established.  This reduces the likelihood of inconsistencies and ensures that each standard has a sound technical and legal basis.

Also, in its current iteration, the Code treats a wide variety of critical food safety issues that, as the short list in the first paragraph of this article shows, states have failed to come to terms with in an even-handed fashion.  For example, the Code lays out time and temperature controls for leafy greens, as well as handling instructions at all points throughout the distribution chain.  As one of the riskiest foods that the FDA regulates–leafy greens have caused, by some estimates, as many as 363 outbreaks[4]–uniform standards might have helped prevent quite a few illnesses.  Additionally, the Code requires that mechanically tenderized meats be cooked to the same internal temperature as ground beef.  If these procedures were standard procedure, the 124 tons of beef products that was recalled in December 2009 by national steak and poultry may have been avoided–not to mention the illnesses of 21 people nationwide.  The Code also establishes safety practices for a number of other potentially risky foods, including milk products, eggs, fish, shellfish, and sprouts.  

The benefit of adopting uniform standards for food safety cannot be overstated.      Consumers should be able to rely on the safety and quality of the food they eat, and they should not have to rely on the civil justice system for the de facto regulatory changes that ought to come from the government.  Nationwide adoption, by federal mandate, of the FDA’s Model Food Code is a step in the right direction.  

Matt Cheung contributed to the research and writing of this article.


1.  See http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FoodCode/default.htm
2.  See http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FederalStateCooperativePrograms/ucm108156.htm
3.  See http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FoodCode/default.htm
4.  See http://www.cspinet.org/new/200910061.html