Speak out against burdensome new state regulations

 

The Texas Department of State Health Services (DSHS) is proposing new regulations for all businesses that sell or serve food directly to consumers, termed “food establishments.”   The proposed regulations will apply to farmers’ market vendors, on-farm events, temporary fundraising events, restaurants, caterers, home delivery services, grocers, co-ops, and more.  The only exceptions are for people selling only uncut fruits and vegetables, cottage food producers, and places offering only pre-packaged shelf-stable foods.

Food establishments are already regulated, and the existing regulations have often caused problems for small farmers, local food producers, and locally sourcing restaurants. Several provisions in these new proposed regulations, incorporating requirements from the FDA’s “model food code,” make the situation worse.

The agency is accepting comments on the proposal — please speak up now to help local food producers!  More information on the regulations is posted at the end of this page, after the sample letter.

TAKE ACTION

DEADLINE: Wednesday, June 3, 2015farfa-take-action

EMAIL: Christopher.Sparks@dshs.state.tx.us
MAIL: Christopher Sparks, Environmental and Consumer Safety Section, Division of Regulatory Services, Department of State Health Services, Mail Code, 1987, P. O. Box 149347, Austin, Texas 78714-9347

Below is a sample letter that covers the main problems we’ve identified in the proposed rule.  We encourage local food consumers to personalize the letter with a few sentences about yourself and why this issue is important to you, to increase the impact.

If you run or work at a food establishment, please take additional time to explain how these issues would impact your business and why the new requirements are not necessary for food safety.  And send a copy of your letter to Judith@FarmAndRanchFreedom.org, so we have a record of the comments that have been submitted when we talk with the agency.

 

Spread the Word!

Share this alert with your friends, colleagues, and customers.  You can also download our 2-sided flyer to put out at your farm stand, restaurant counter, etc.

 

SAMPLE LETTER

Download a Word version of the sample letter, so that you can edit and print it easily, here

 

Re: Proposed food establishment regulations

I am a [farmer, artisan food producer, consumer, ….. add a sentence or two about yourself and why you care about these issues].

I am concerned that the proposed food establishment regulations will unnecessarily burden local food producers and small food establishments who provide access to healthy local foods for our community.

I urge you to make the following changes:

  1. Not to add any new requirements for food managers’ certification or food handlers’ training for food establishments under proposed section 228.33. The existing requirements for training are sufficient, and this simply places new burdens (in time, money, and availability of part-time labor) on small food businesses.  At the very least, if new requirements are added, the agency should specifically exempt farmers’ market vendors, on-farm establishments, and establishments selling foods that require minimal handling (such as frozen meats and shell eggs).
  2. Not to add any new requirements in section 228.65 for businesses that allow bare-hand contact with ready-to-eat foods.  The existing requirements already address important issues such as handwashing; the new requirements simply add paperwork and other unnecessary burdens that do not increase food safety.
  3. Remove the requirements in section 228.222 that place unnecessary requirements on temporary food establishments (TFEs).  Many TFEs are set up for only a few hours a week , such as at farmers markets, or even less often, such as on-farm tours or dinners.  Specifically, the agency should:specify that grading of the floors is only required if there is a problem with water accumulation during the time that the TFE is operating;add cardboard and tarps to the list of allowed floor coverings;   allow open-air food preparation under a canopy unless there is evidence of disease-carrying pest problems; and take out the requirement for having a method to heat water on-sit
  4. Remove the new requirements for mobile food and roadside vendors in section 228.221, including: (a) Requiring the submission of the menu ahead of time; (b) Requiring access to bathrooms at all times, since some roadside vendors may operate for only a couple of hours and don’t need access during that time; and (c)  Requiring a 3-basin sink without allowing for alternative arrangements such as a 3 containers that could be used for washing utensils.
  5. Amend the language of section 228.63 to be clear that, so long as safe temperatures are maintained, the farmer does not need to deliver food to the establishment in refrigerated equipment.
  6. Amend section 228.63(d) to allow a food establishment to take delivery of raw milk from licensed producer dairies, subject to a requirement that the establishment pasteurize the milk prior to serving.

Signed,
[Name]
[Address or email]

 

MORE INFORMATION

You can read the full proposed regulations here (starting at page 29 of the pdf)

 

Issue 1: Requiring food managers certification

Proposed section 228.33 requires that at least one person at every food establishment have food managers certification.  This requires a 2-day, in-person training with a fee of around $200.  The course covers everything from the prevention of foodborne illness to waste disposal and sanitary plumbing to the appropriate standards for building construction of food facilities.  Many of the topics are simply irrelevant for small-scale producers, particularly farmers selling frozen meats or eggs.

While the proposed regulations provide that the health authority can choose  to exempt “certain types” of establishments that pose “minimal risk,” but they do not specify what those establishments might be.

The existing regulations require that the food establishment have someone in charge who has appropriate knowledge of food safety requirements and regulations.  This can be done by having a food managers certification OR by responding correctly to the inspector’s questions OR simply by proving it through action – complying with the rules without having any critical violations.  This makes sense — if a food establishment is being run so well that it has no critical violations, then why add a requirement for an expensive, time-consuming certification?

The agency should not add the new requirement for food managers certification.  At the very least, if a new requirement for food managers certification is added, the agency should specifically exempt farmers’ market vendors, on-farm establishments, and establishments selling foods that require minimal handling (such as frozen meats and shell eggs).

 

Issue 2: requiring all food employees to have food handlers training

Proposed section 228.33(c) requires that all food employees have a food handlers’ license.  This includes part-time and temporary workers at every kind of establishment.

If a farmer needs occasional help at a farmers market booth, or a restaurant hires a few extra people during South by Southwest, or a caterer needs extra hands for a special event – every single one of the people they hire must have a food handlers license.

The food handlers course is much less onerous than the food managers course, but it still takes both time and money, and will unnecessarily limit who these small businesses can hire.

The agency should not add the requirement that every food employee have a food handlers’ license.  At the least, if a new requirement is added, it should be limited to having one person on-site, not everyone, with food handlers certification, and exempt farmers’ market vendors, on-farm establishments, and establishments selling foods that require minimal handling (such as frozen meats and shell eggs).

Issue 3: Barriers placed on bare-hand contact with food.

Proposed section 228.65 makes it extremely difficult to handle any ready-to-eat food with bare hands, effectively requiring plastic gloves or special dispensing equipment to be used.

The continued emphasis on wearing gloves ignores the studies that have shown that gloves do not actually increase food safety.  In large part, this is because workers fall into the mindset that wearing gloves is a protection in and of itself; they’ll touch their faces, pick up the phone, handle money, or otherwise contaminate the outside of the gloves and then go back to handling the food.

While not providing food safety benefits, the requirement to wear gloves creates a significant amount of unrecyclable plastic weight.

The existing regulations already place burdens on food establishments that allow bare handed contact, but the new ones make it far more onerous.  The proposed regulation would require prior approval by the regulatory authority, which creates both paperwork and delay.  It requires a list of the specific ready-to-eat foods and food additives that are touched by bare hands, even though this makes no difference whatsoever to food safety.  It also requires a diagram showing handwashing equipment in the facility – a requirement that makes no sense, since having handwashing facilities actually installed and functioning is already required, so a diagram adds nothing to food safety protections.   Further, it requires a “written employee health policy,” with documentation that the employees are trained on their responsibility to not handle food when they have a transmissible health issue – but that is just as much of a risk when employees wear gloves, unless they are carefully trained in proper sanitation procedures.

In other words, the regulations add a lot of paperwork and time burdens that are clearly aimed at pushing businesses into using gloves, even though there’s no good health reason.  We don’t object to the existing requirements that employees be trained in such things as proper handwashing techniques –that should be required whether or not bare hand contact is allowed, since  proper handwashing is vital to food safety regardless of whether or not gloves are used.  We do object to regulations that are simply a disguised attempt to ban bare-hand contact without the agency having to admit that’s what it’s trying to do.

The agency should not change the existing provisions that govern bare-hand contact with ready to eat foods.

Issue 4:  Burdens placed on temporary events, which includes on-farm events and on-site food preparation at farmers markets

Proposed section 228.222 adds new requirements for “temporary food establishments.”   A temporary food establishment permit is required for any event where food is prepared at a location that doesn’t have a permanent license.  For example, on-farm dinners, farm tours  at which food is served, and farmers’ market booths that offer hot food or serve drinks (even simply mixing lemonade and ice) all require TFE permit.

The existing TFE regulations have some provisions that are already of concern, and these are carried over into the proposed regulations as well:
1)    The requirement that the “floors” be graded.  Remember that these temporary events are often set up on farms or in parks, where grading isn’t feasible.
2)    The requirement for floor covering.   The regulations require a floor covering to reduce dust and mud, and list such things as mats and plywood.  While the local authorities sometimes approve cardboard or tarps – the two simplest and most cost-effective options – these are not listed as approved materials in the regulations.
3)    The requirement that the food preparation area be completely enclosed by mesh screens, air curtains, or other methods.  This is only necessary, from a health perspective, when disease-carrying pests (such as flies) are an issue.

The regulations should be amended to specify that grading is only required if there is a problem with water accumulation during the TFE’s functioning (which, by definition, is only temporary – and usually not during heavy rainfalls!).  The regulations should also specifically add cardboard and tarps to the list of allowed floor coverings.  Last, they should allow open-air food preparation unless there is evidence of disease-carrying pest problems and offer alternatives that the TFE operator may cover the food with a lid or screen.

The proposed regulations also add new problems for TFEs:
1)     Proposed section 228.222(d)(5) specifies that the TFE must have a means to heat water on-site.  Currently, it’s enough for the TFE to have warm water available, which can be done by bringing hot water in an insulated container.  Requiring a producer at a farmers’ market booth to actually heat the water on-site is unnecessary and unrealistic – many simply don’t have electricity at the event!
2)    Proposed section 228.222(k) adds a reference to “walls” for the first time.  Many, if not most, of the TFEs are in locations that don’t have walls – they are simply tents set up in the open air.  The implication that the producer should be in a fully enclosed area could be used to block many farmers market vendors and on-farm events from being allowed to function.

The proposed regulatory provisions requiring a method for heating water on-site and for walls should be deleted.

Issue 5: Unrealistic requirements for roadside vendors

Roadside food vendors are classified as “mobile food establishments,” the same category as food trucks.  Section 228.221 of the proposed regulations adds several requirements that are unnecessarily burdensome:
1)    Requires the menu to be submitted ahead of time to get a permit.  But what if the menu changes based on seasonable availability?  Having a menu doesn’t actually increase food safety.
2)    Requires a 3-compartment sink, with no provision for alternative arrangements.
3)    Adds a requirement for toilet rooms “shall be conveniently located and accessible to employees during all hours of operation.”  While access to restrooms is important, a vendor who is set up for only an hour or two does not need this.

None of these provisions should be added.

Issue 6: Mandating how food is kept cold, rather than simply mandating the temperatures

Proposed section 228.63(a) addresses what temperature food must  be kept at when it is delivered to a food establishment.  Temperature controls are an important part of food safety.  However, the language of the proposed regulation implies that mechanical refrigeration equipment must be used to maintain those temperatures — which would require anyone who provides eggs or dairy to a restaurant or even a food truck to have an expensive refrigerated truck, rather than simply using coolers and ice packs.

The language should be amended to clearly require the temperatures to be maintained, but not to specify a method for doing so.

Issue 7:  Preventing chefs and food producers from buying unpasteurized dairy, even if they plan to pasteurize it themselves

Like the existing regulations, section 228.63(d) of the proposed regulations requires that all dairy be delivered to a food establishment already pasteurized.

This requirement that has caused problems in sourcing local dairy for businesses that wish to use local ingredients.  Local ice cream makers or cheese makers who wish to source local, hormone- and antibiotic-free milk find their options severely limited because they can only buy from producers who own a $20,000 pastuerizer.

The food establishments are more than capable of pasteurizing raw milk before serving it to their customers.  We trust them to properly handle raw meat, eggs, and shellfish – why not milk?

This is NOT about seeking to have raw milk or raw milk products served to food establishment customers.  It’s about allowing these businesses to source high quality local dairy and pasteurize it themselves, in accordance with appropriate regulations.

Section 228.63 should be amended to allow raw milk to be delivered from Grade A dairies, subject to a requirement that the food establishment pasteurize it prior to serving.  The regulations can specify the time/temperature requirements for pasteurization to ensure safety.