Key Takeaways from the 2022 FDA Food Code

In the waning days of 2022, FDA issued an updated Food Code with several important updates. FDA is responsible for more than a quarter of the U.S. economy, and the Food Code impacts virtually every American.

According to FDA, the Food Code:

represents the FDA's best advice for a uniform system of provisions that address the safety and protection of food offered at retail and in food service, and while it is a model code that is not required, it has been widely adopted by state, local, tribal and territorial agencies that regulate more than one million restaurants, retail food stores, vending operations and food service operations in schools, hospitals, nursing homes, and childcare centers. 

Let’s examine the key new provisions of the 2022 Food Code.

Why were these changes made and what are the key impacts on restaurants?

The Food Code is updated to reflect best safety practices while taking account of societal changes and practical realities at food establishments. According to FDA, adherence to the Food Code will promote:

• The reduction of foodborne illness risk within food establishments, protecting consumers and industry from potentially devastating health consequences/financial losses;
• The creation of uniform standards for retail food safety that reduce complexity and better ensure compliance;
• The elimination of redundant processes for establishing food safety criteria; and
• A more standardized approach to inspections and audits of food establishments.

Many of the key changes in the 2022 Food Code relate to food allergens.  Specifically, the code (1) adds sesame as a major food allergen to reflect that the Food Allergy Safety, Treatment, Education, and Research Act of 2021 established sesame as the ninth major food allergen; (2) requires that consumers be informed, in writing, of major food allergens as ingredients in unpackaged food; and (3) requires labeling of major food allergens in bulk food that is available for consumer self-dispensing.

These concerns reflect FDA’s increasing commitment to ensuring that Americans with allergies are aware of the potential allergens in their foods and impose commensurate duties on restaurants and food producers in order to further that commitment.

How does this modify cooking requirements? 

Generally speaking, FDA continues to leave a wide range of discretion to food service providers. That said, the new Food Code does contain two new requirements.

First, commercially packaged food that bears a manufacturer’s cooking instructions shall be cooked according to those instructions before use in ready-to-eat foods or offered in unpackaged form for human consumption.  There is an exception to this rule – which may be limited in the restaurant context – if the manufacturer’s instructions specify that the food may be consumed without cooking (e.g., dried soup mix with instructions to be cooked as a soup or used uncooked in preparing a dip).

Second, food for which the manufacturer has provided information that it has not been processed to control pathogens, when used in ready-to-eat foods or offered for human consumption, shall be cooked according to a time and temperature appropriate for the food. That revision still leaves discretion to the restaurant (such as determining the time and temperature appropriate for the food), but it requires the restaurant and chef to carefully make those determinations and apply them to all customers.

What do restaurant owners need to know about food donations?

One-third of all food in the U.S. goes uneaten. The new Food Code specifically addresses food donations for the first time, which FDA says is part of the “Administration’s National Strategy on Hunger, Nutrition, and Health.” The strategy “provides a roadmap of actions the federal government is taking to end hunger and reduce diet-related diseases by 2030 – all while reducing disparities.”

To prevent food loss and waste across the food supply chain and help ensure safe, good-quality food gets to those who need it most, the 2022 Food Code has clarified that food that is stored, prepared, packaged, displayed, and labeled according to Food Code safety provisions can be donated. Restaurants should take care to store their packaged food in accordance with all applicable safety provisions if they wish to take advantage of this new donation program.

What are changes regarding pet dogs in outdoor dining spots?

Dog lovers, rejoice! The new Food Code allows customers to bring pets into outdoor dining areas where pet dogs are otherwise allowed. A few key points.

First, the Food Code does not supersede state and local rules governing the allowance of pet dogs in dining areas. If applicable law prohibits pet dogs in specified dining areas, then pet dogs remain prohibited in those dining areas.

Second, a restaurant may still prohibit pet dogs in outside dining areas if it chooses to do so – provided that the prohibition does not run afoul of applicable laws regarding reasonable accommodations for patrons who need pet dogs for service purposes or to otherwise cope with a medical condition. I recommend that restaurants that prohibit pet dogs err on the side of allowing pet dogs for patrons if there is a question about whether the pet dog is presented as an accommodation for a medical condition.

Third, cat lovers and lovers of other pets will need to wait until the next Food Code update unless, again, the animal is for a medical condition.

The Food Code is an important guide for restaurants in making broadly applicable policies for a group of customers that is as diverse as the United States. The issues above are modest suggestions for how to incorporate the new provisions of the 2022 Food Code into restaurant policies and procedures.