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Food Supply Chain Members Face New Requirements Under Sanitary Transport Rule

Thursday, April 07, 2016
Sandler, Travis & Rosenberg Trade Report

Shippers, carriers, receivers, foreign exporters and others in the food supply chain will all be affected by broad new regulatory requirements for sanitary transportation set forth in a new Food and Drug Administration final rule. Compliance with this rule will be required as of April 6, 2017, except that small businesses will have until April 6, 2018.

The FDA rule is designed to prevent the physical, chemical or biological contamination of human and animal food during transportation by motor or rail vehicles through practices such as improperly refrigerating food, inadequately cleaning vehicles between loads and failing to properly protect food during transportation. Specific requirements will apply to the design and maintenance of vehicles and transportation equipment, measures taken during transportation to ensure food is not contaminated, training of carrier personnel, and maintenance of records of written procedures. Failure to comply could result in food shipments being refused entry into the U.S.

With some exceptions, this rule will apply to shippers, loaders, receivers and carriers who transport food in the U.S. by motor or rail vehicle, whether or not the food is offered for or enters interstate commerce. It will also apply to persons outside the U.S., such as exporters, who ship food to the U.S. (a) directly by motor or rail vehicle (from Canada or Mexico) or (b) by ship or air and arrange for the transfer of the intact container in the U.S. onto a motor or rail vehicle for transportation in the U.S., provided that the food will be consumed or distributed in the U.S. Companies involved in the transportation of food intended for export are covered by the rule until the shipment reaches a port or U.S. border.

The new requirements do not apply to (1) transportation solely by ship or air, (2) food transshipped through the U.S. to another country by motor or rail vehicle (e.g., from Canada to Mexico) if the food does not enter U.S. distribution, (3) all transportation activities performed by a farm, (4) food imported for future export that is neither consumed nor distributed in the U.S., (5) food completely enclosed by a container (except if it requires temperature control for safety), (6) human food byproducts for use as animal food without further processing, (7) live food animals (except molluscan shellfish), (8) food contact substances, (9) compressed food gases (e.g., carbon dioxide, nitrogen or oxygen authorized for use in food and beverage products), and (10) entities with less than $500,000 in annual revenue or that have been granted a waiver by the FDA.

The FDA states that under this rule primary responsibility for determining appropriate transportation operations (e.g., whether food needs temperature control for safety, whether particular clean-out procedures are needed, and whether previous cargo must be identified) now rests with the shipper, who may rely on contractual agreements to assign some responsibilities to other parties.

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