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April 11, 2016 4:00 AM, EDT

FDA Issues Food Safety Rule

Regulation Aims to Prevent Spoilage in Transit
Thermo King Corp.
This story appears in the April 11 print edition of Transport Topics.

The U.S. Food and Drug Administration last week issued its final rule establishing new requirements for the sanitary transportation of human and animal food by truck and rail, to guard against food contamination.

The rule obligates shippers, loaders, rail and motor carriers and receivers engaged in food transportation and freight brokers when they initiate food shipments.

It also addresses requirements for training, records and waivers.

“Consumers deserve a safe food supply, and this final rule will help to ensure that all those involved in the farm-to-­fork continuum are doing their part to ensure that the food products that arrive in our grocery stores are safe to eat,” Michael Taylor, FDA’s deputy commissioner for foods and veterinary medicine, said in an April 5 statement.

The agency said the rule, which is the result of congressional mandates, was written in response to a number of incidents of unsanitary transportation practices over the past few decades.

For the first time, violators can be punished criminally, said Christopher Ripple, a regulatory attorney with the Charlottesville, Virginia, law firm of McGuireWoods, whose clients include motor carriers and food industry firms.

Practices that create risk of food adulteration include improper refrigeration, inadequate cleaning of vehicles between loads and the failure to otherwise properly protect food during transportation, the agency said in its rule published in the Federal Register on April 6.

Large companies will be required to comply with the new regulation one year after publication, while smaller firms will have two years to comply.

Many carriers and shippers were still analyzing the 283-page rule last week, but there were early indications that the final version offers more flexibility for truckers than the original proposal.

Truck refrigerated unit manufacturers Thermo King and Carrier Transicold, the Transportation Intermediaries Association and shipper group the National Industrial Transportation League were contacted but didn’t return calls for this story.

“There were some pretty significant changes made on the positive side,” said Jon Samson, executive director of the Agricultural & Food Transporters Conference of American Trucking Associations.

Samson said the final rule will allow a food receiver to make the call whether a truckload of food is adulterated if, for example, the proper temperature stipulated in a contract was not precisely maintained during transport.

The 2014 proposed rule would have required that the food be automatically declared adulterated in such instances, Samson said.

“Also, they’re backing off on any sort of prescriptive requirements for temperature monitoring or continuous monitoring,” he said.

Ripple said there’s greater flexibility on the kinds of temperature controls necessary for a particular shipment.

“There may be some good news for carriers, in the sense that carriers’ obligations under the rule are going to be largely dependent on the contracts they enter into with shippers,” he said. “So, in effect, there’s a default that places the primary responsibility on the shippers for determining what sanitary practices are needed for a particular shipment.”

However, Ripple points out that carriers and other participants in the food transportation chain are still responsible for identifying unsafe practices and can be not only fined but found guilty of a misdemeanor for violating the regulation.

“There’s still some challenges out there for shippers and carriers,” said Don Durm, director of strategic customer solutions at PLM Trailer Leasing. “The final rule is still somewhat confusing.”

For example, Durm said, there are no protocols for how often a trailer transporting food must be washed out or swept, or in what manner. “The shipper is the one who says, ‘Here’s how I want you to sanitize the trailer.’ These will be written procedures between the carrier and shipper.”

Jim Subler, president of refrigerated carrier Classic Carriers in Versailles, Ohio, called the rule “a typical, wonderful government thing to come out and solve a problem that we don’t have.”

“The biggest part of this whole thing that’s really confusing is the carriers are supposed to look to the shippers for guidance,” Subler said, “but the shippers are coming to the carriers saying, ‘What are we supposed to do?’ ”

“If you’re the carrier, you need to decide if this is something I want to transport under the terms and prices,” said Rob Moseley, a trucking attorney with the law firm Smith, Moore and Leatherwood in Greenville, South Carolina, “and the carrier’s going to have to be given notice of what the transport protocols are in order to make decisions about whether they want to handle it or not.”

The rule requires that records be kept for up to a year. Record-keeping violations alone can cause food to be declared adulterated.