By Daniel Pessar (Guest Blogger)
In May, the U.S. Food and Drug Administration (FDA) released the Best Practices for Re-Opening Retail Food Establishments During the COVID-19 Pandemic – Food Safety Checklist. The document contains dozens of questions for food facilities to consider relating to Handwashing Stations, Employee Health, and Facility Operations. Some of the questions are very specific, such as
“Are all the handwashing sinks functional and able to reach 100 F minimum?”
Best Practices for Re-Opening Retail Food Establishments During the COVID-19 Pandemic – Food Safety Checklist, U.S. Food and Drug Administration (May 21, 2020), https://www.fda.gov/media/137867/download
Yet, food safety professionals understood that this list was mostly comprised of food safety recommendations that the FDA’s most recent Food Code already includes. For example, the 2017 Food Code—its most up to date full release—contains the following:
[Handwashing sinks] shall be equipped to provide water at a temperature of at least 38°C (100°F) through a mixing valve or combination faucet.
FDA Food Code 2017 §5-202.12, https://www.fda.gov/media/110822/download
Because the FDA’s mandate regarding retail food establishments mostly relates to food safety, this makes sense. The checklist contains guidance generally applicable to reopening food establishments, serving as a reminder for responsible parties to make sure all of the core systems and policies are functioning. Consistent with this purpose, ventilation, pest management, fire prevention, product inspection and rotation, and warewashing are just some of the items mentioned in the document.
Three items in the checklist relate to social distancing, but most of the dozens of items listed are familiar to retail food establishments, such as:
“Have you trained and reminded employees of effective hand hygiene practices including washing hands with soap and water for at least 20 seconds, especially after going to the bathroom, before eating, and after blowing their nose, coughing, or sneezing?”
Best Practices for Re-Opening Retail Food Establishments During the COVID-19 Pandemic – Food Safety Checklist, U.S. Food and Drug Administration (May 21, 2020), https://www.fda.gov/media/137867/download
This unchanged focus on food safety is understandable given the lack of evidence associating food with the pandemic. According to the FDA:
“Currently there is no evidence of food, food containers, or food packaging being associated with transmission of COVID-19. Like other viruses, it is possible that the virus that causes COVID-19 can survive on surfaces or objects. If you are concerned about contamination of food or food packaging, wash your hands after handling food packaging, after removing food from the packaging, before you prepare food for eating and before you eat.”
COVID-19 Frequently Asked Questions (Current as of June 17, 2020),
https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease- 2019-covid-19/covid-19-frequently-asked-questions
While the CDC might advise about the risks of attending certain restaurants, the FDA has a different role to play and the pandemic does not necessarily warrant a change in its strategies for ensuring food safety. While the public might be responsible in focusing on handwashing to prevent the spread of the coronavirus, handwashing sinks in food establishments continue to serve more general food safety functions as well. The 2017 Food Code explains that the accessibility of handwashing sinks with warm water are important for materials encountered in kitchens, too:
“Warm water is more effective than cold water in removing the fatty soils encountered in kitchens. An adequate flow of warm water will cause soap to lather and aid in flushing soil quickly from the hands. ASTM Standards for testing the ef cacy of handwashing formulations specify a water temperature of 40°C ± 2°C (100 to 108°F).”
FDA Food Code 2017, Annex 3: Public Health Reasons/Administrative Guidelines §5-202.12, https://www.fda.gov/media/110822/download
The next full FDA Food Code, adopted on some level by food-regulating agencies in 49 states, is scheduled to be released in 2021. While public health and social distancing guidance may continue to affect countless interactions for the foreseeable future, there is no indication that food safety best practices are about to change.
*Daniel Pessar is a third-year student at Harvard Law School. Before law school, he worked in the real estate investment industry for six years. He is the author of three books and numerous articles. He can be contacted at dpessar@jd20.law.harvard.edu
On Food Law 