Prepare for new U.S. food rules

by Nicholas Camilleri

NASHVILLE, TN – Carriers should treat food like high-value cargo if it’s covered by new regulations under the U.S. Food and Drug Administration’s Food Safety Modernization Act, legal experts have told a crowd at the annual meeting of the Truckload Carriers Association.

Representatives with Benesch, Friedlander, Coplan and Aronoff LLP even suggest it might be a good idea to offer lower rates to shippers willing to accept a limit of liability on claims for compromised or “adulterated” food shipments.

As of April 6, carriers with an annual revenue of more than US $27.5 million must comply with the act’s regulations for safely handling food.

The Sanitary Transportation of Human and Animal Food (STF) Rule was finalized a year earlier, and introduces requirements for shippers, loaders, carriers, rail carriers and receivers involved in transporting certain foods. 

“All it did was allow the [U.S. Food and Drug Administration] to make new rules,” said Chrisopher Lalak, an associate with the law firm. 

Generally, the STF Rule covers all human and animal foods, additives, and dietary supplements in addition to foods regulated under the federal Food, Drug and Cosmetic Act, such as animal food, food additives, and dietary supplements. But the legal team says carriers shouldn’t agree to regulatory requirements for products that aren’t covered, or obligations that can’t practically be met, and reassign responsibilities to those in the best position to ensure compliance.

“Look what you’re agreeing to,” said Lalak, adding that carelessness with contracts could lead to problems down the road. The FDA also allows carriers to allocate different responsibilities to the shippers and companies they work with, and this could help avoid potential legal issues.

In addition, carriers should have a procedure to follow if they become aware of any problems with temperature controls or other conditions that might compromise a food shipment — and determine exactly who is qualified to determine if a shipment is compromised or “adulterated”.

It’s about addressing potential challenges before they occur, and incorporating terms into contracts, rules, publications, and bills of lading.

“There’s a bit of a notion out there that [the Act] required you to do something different than before, operationally,” Lalak said. But while there’s a lot of paperwork and contractual differences, the regulation shouldn’t provide a lot of barriers or conflicts for those who were already following best practices. 

There are some exemptions to the new rules, though.

Small shippers, receivers and carriers will be exempted from the rule. Food that is completely enclosed by a container unless the food requires refrigeration for safety, compressed food gases, human food by-products for use as animal food, live food animals excluding mollusks and shellfish are excluded as well. Food that travels through the U.S. but is not distributed there will fall outside the rules, too.

“The FDA specifically say frozen foods were not covered, because of the time that it would take frozen food to become unsafe during food transportation due to variance in temperature,” said Stephanie Penninger, an associate with the law firm. “They didn’t think that it would actually be a problem like it would be for perishables, meats and other types of food.”

 

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