Draft and Proposed Rules - Retail Food Establishments

Texas Food Establishment Rules - Draft Rules 

Frequently Asked Questions and Comments

Background:

The Texas Food Establishment Rules (TFER) Draft Rules were posted for Informal Comments on the Health and Human Services Rule-making, Comment on Proposed and Draft Rules web page from April 27 - May 11, 2020. The informal comment period provides opportunities for comments from stakeholders before a rule is published in the Texas Register. The Texas Department of State Health Services (DSHS) received numerous informal comments from stakeholders, including from state, local, and county regulators, health associations, a nonprofit advocacy organization, and industry partners. The following Question and Answer is intended to provide clarification to the most common questions and comments received throughout the informal comment period. 

1. Does the change of the TFER draft definition (25) Regulatory authority that only identifies DSHS remove local and county health departments authority for licensing and inspection within their jurisdictions?
2. Does the TFER draft remove the current 47 item inspection report or prohibit a health department from using it as their inspection report within their jurisdictions? 
3. If there is not a specific inspection report identified in the TFER draft, what will DSHS use in place of the 47 item inspection report for retail food inspections?
4. Why is the program updating rules as the current TFER was updated in 2015?
5. Why is DSHS referencing the 2017 FDA Food Code versus continuing to transcribe the code into rule?
6. DSHS has been the primary resource for state rules and interpretation for regulatory agencies in Texas.  Will this TFER draft defer resources to a federal level?

7. Will DSHS provide printed copies of a uniform reporting symptoms and diagnosis sign or poster for food establishment use?

8. Does update of the definition 228.2(14)(C)(iii) identifying what is not a food establishment remove regulatory authorities’ ability to inspect the premises of a food establishment in which a food processing plant is also located?

9. Will DSHS provide any assistance for the transition of the TFER Draft?

10. Why were local and county health department not included in the creation of the TFER Draft?
11. The reference of the FDA Food Code will cause a lack of uniformity and remove the framework currently structured in TFER.
12. Some local jurisdictions already require Food Handler Certifications at Temporary Events.  How, would this effect a county department?
13. The draft TFER excludes FDA section 8-201.11, relating to when plans are required for food establishment construction, but the following FDA section 8-201.12 that outlines the contents of submitted plans is not excluded. What was the purpose?
14. The subchapter on Private Water Systems is removed in the proposed TFER and replaced with a reference to 30 TAC Chapter 290, Subchapter F. This would result in an inspector marking the entire chapter out of compliance through citing a specific statute.
15. The FDA definition of “Additive” for both “Color Additive” and “Food Additive” reference the Code of Federal Regulations (CFR) instead of the applicable Texas statutes in Health and Safety Code 431.
16. There is poor alignment between the FDA Food Code and the draft TFER regarding eggs. The draft TFER cites “Chicken Eggs” in a single section, §228.62(b) for receiving specifications, and all other references in both codes refer to “raw shell eggs” throughout.
17. Why were the definitions of “Bare Hand Contact” and “Non-Time/Temperature Control for Safety Food” removed from TFER Draft?
18. The TFER Draft allows an establishment to operate without electricity as stated in FDA Food Code 8-404.11.

19. Certified Food Manager updates in TFER draft. Does this mean on-site at all times?

20. Adoption by reference of the 2017 FDA Food Code, or any other substantial change to the 2015 Texas Food Establishment Rules, will place a severe financial burden on local health jurisdictions that already have paid for the installation or updating of inspection software in line with the 2015 TFER. 

Does the change of the TFER draft definition (25) Regulatory authority that only identifies DSHS remove local and county health departments authority for licensing and inspection within their jurisdictions?

No, the definition change does not remove local or county authority to permit or conduct inspections within respective jurisdictions.   

The definition change by the department was to align DSHS rules with other Consumer Protection Programs. Informal comments to keep the current definition in 2015 TFER are under consideration by the department.  

Does the TFER draft remove the current 47 item inspection report or prohibit a health department from using it as their inspection report within their jurisdictions? 

No, removing the inspection report from rule will allow jurisdictions to choose and implement inspection reports of their choice, including the current 47- item inspection report.

The removal of the inspection report by DSHS was to provide flexibility for health departments to modify their inspection reports as their jurisdictions deem necessary without interference with future TFER updates. The department is considering the recommendation to update the current 47- item inspection form matrix to reference the needed FDA citations and eliminate confusion in programs continuing to use the current inspection report.

If there is not a specific inspection report identified in the TFER draft, what will DSHS use in place of the 47 item inspection report for retail food inspections?

DSHS is currently taking info from field staff and regional leadership and examining options for inspection reports which will best suit the specifics for DSHS inspections and enforcement for food establishments located within the department’s jurisdiction.

Why is the program updating rules as the current TFER was updated in 2015?

DSHS, must review all rules every four years for consistency and required updates per policy or statute. The current 2015 TFER was at the necessary time frame for review and required updates due to S.B. 476 concerning dogs in outdoor dining areas of retail food establishments.

The TFER draft references the 2017 FDA Food Code, the most current Food Code, and leaves only the Texas Specific regulations in TFER. 

Why is DSHS referencing the 2017 FDA Food Code versus continuing to transcribe the code into rule?

DSHS sees adoption of the Food Code by reference as an efficient and streamlined method of keeping pace with changes to the Food Code. This expedites future-rule making for the department and avoids long durations without TFER updates.

DSHS has been the primary resource for state rules and interpretation for regulatory agencies in Texas.  Will this TFER draft defer resources to a federal level?

No, DSHS will continue to be a resource for health programs and training across Texas.  The department will address questions and provide interpretation for Texas-specific rules and the FDA Food Code. DSHS currently works closely with the assigned FDA Retail Food Specialist regarding interpretations, since much of the current rule is transcribed from the 2013 FDA Food Code.   

Will DSHS provide printed copies of a uniform reporting symptoms and diagnosis sign or poster for food establishment use?

DSHS currently provides a digital copy of a food employee reporting sign posted on our guidance documents page that can be used to meet the new requirement.

Comments to change the location of the reporting signage at every handwashing station to a prominent location in the food establishment are under consideration by the department.

Does update of the definition 228.2(14)(C)(iii) identifying what is not a food establishment remove regulatory authorities’ ability to inspect the premises of a food establishment in which a food processing plant is also located?

No, the edited definition does not prohibit a regulatory authority from permitting or inspecting a processing plant located on the premises of a food establishment. However, TFER is specific to food establishments and does not apply in food processing plants.

Will DSHS provide any assistance for the transition of the TFER Draft?

DSHS will continue to respond to training and standardization requests submitted to the department.  The department will also continue to provide guidance documents and regulatory clarifications on TFER.

Reference to the FDA Food Code will also allow for more related training from FDA Compliance Wire and Pathlore training sites.

Why were local and county health department not included in the creation of the TFER Draft?

DSHS is the primary department for food safety rule development specified in Health and Safety Code for Texas. Texas stakeholders can provide informal comments for draft rules and formal comments for proposed rules during rule development.  

The reference of the FDA Food Code will cause a lack of uniformity and remove the framework currently structured in TFER.

DSHS believes the framework for identifying and interpreting food safety violations is still the same as the current 2015 TFER. The additional support documents--FDA Annex 3 and FDA Supplement--further educate and clarify the rules in a way not currently done in TFER. 

Some local jurisdictions already require Food Handler Certifications at Temporary Events.  How, would this effect a county department?

Current section 228.222(a)(2) and draft Rules allow regulatory authority to have at least one person on-site who has a minimum of an accredited food handler certification if they deem it necessary. DSHS does not require this for temporary events operated in DSHS jurisdiction.

The draft TFER excludes FDA section 8-201.11, relating to when plans are required for food establishment construction, but the following FDA section 8-201.12 that outlines the contents of submitted plans is not excluded. What was the purpose?

8-201.11 was excluded to allow more flexible language included in draft TFER §228.241 Facility and Operating Plans.  The department is considering revisions to the section to provide clarification. 

The subchapter on Private Water Systems is removed in the proposed TFER and replaced with a reference to 30 TAC Chapter 290, Subchapter F. This would result in an inspector marking the entire chapter out of compliance through citing a specific statute.

DSHS does not have regulatory authority over private water systems. The draft TFER makes reference to the 30 TAC Chapter 290, Subchapter F, which are TCEQ rules that set minimum standards for transient noncommunity water systems.

The FDA definition of “Additive” for both “Color Additive” and “Food Additive” reference the Code of Federal Regulations (CFR) instead of the applicable Texas statutes in Health and Safety Code 431.

Program will take comments into consideration for changes.

There is poor alignment between the FDA Food Code and the draft TFER regarding eggs. The draft TFER cites “Chicken Eggs” in a single section, §228.62(b) for receiving specifications, and all other references in both codes refer to “raw shell eggs” throughout.

TDA is the regulatory agency when setting grading requirements for eggs in Texas.  The department may only address grading available in Texas.

Please refer to Regulatory Clarification No. 20, Selling Non-Chicken Eggs to a Retail Food Establishment, for more information on other eggs sold to retail food establishments.

Why were the definitions of “Bare Hand Contact” and “Non-Time/Temperature Control for Safety Food” removed from TFER Draft?

The term bare hand contact is not currently defined in FDA Food Code due to its self-description. Non-TCS is not defined in FDA Food Code but is a described in the current definition of Time/Temperature Control for Safety Food as examples of food not included in the definition.

The TFER Draft allows an establishment to operate without electricity as stated in FDA Food Code 8-404.11.

The new information added to the imminent health hazards section in the 2017 FDA Food Code allows a food establishment to continue operations in the event of an extended interruption of electrical or water service.  However, this can only be approved by the regulatory authority if:

• a written emergency operating plan has been approved;
• immediate corrective action is taken to eliminate, prevent, or control any food safety risk and imminent health hazard associated with the electrical or water service interruption; and
• the regulatory authority is informed upon implementation of the written emergency operating plan.

The amendment is necessary due to the frequent occurrence of weather events such as hurricanes and tornadoes in Texas.

Certified Food Manager updates in TFER draft. Does this mean ON-SITE at all times?

Yes, the current TFER and Draft TFER require that the Person-in-Charge be present at the food establishment during all hours of operation. 2017 FDA Food Code amended paragraph 2-102.12(A) to require that the Person in Charge be a Certified Food Protection Manager.

Adoption by reference of the 2017 FDA Food Code, or any other substantial change to the 2015 Texas Food Establishment Rules, will place a severe financial burden on local health jurisdictions that already have paid for the installation or updating of inspection software in line with the 2015 TFER. 

The department is committed to providing rules that reflect current knowledge, food standards, and that protect public health. The department is reviewing this concern and will determine if amendments are necessary.

Future opportunities to comment formally to the proposed rules is currently targeted around late December 2020.  PSRFSU is still in the process of scheduling webinars at a later time for further stakeholder discussions. (A webinar was not able to be completed during the informal comment period due to DSHS COVID-19 pandemic response.) 

• TFER Draft (PDF)
• Microsoft TEAMS - Guest Guide (PDF)
  

SB 476 - Summary

UPDATE:  SENATE BILL 476 (86^th Legislature)

Effective September 1, 2019     

Senate Bill 476 added new language (HSC 437.025) to Health and Safety Code Chapter 437 to allow (but not require) food establishment owners to permit customers to bring pet dogs into outdoor dining areas.  “A municipality may not adopt an ordinance, rule, or similar measure that imposes a requirement on a food service establishment for a dog in an outdoor dining area that is more stringent” than the requirements set forth by the bill.  Below are the requirements listed in new HSC 437.025 for an outdoor dining area in which dogs will be allowed:

1.  The establishment must post a sign in a conspicuous location in the area stating that dogs are permitted.

2.  The customer and dog must access the outdoor dining area directly from the exterior of the establishment.

3.  The dog must not enter the interior of the establishment.

4.  The customer must keep the dog on a leash and under control.

5.  The customer must not allow the dog on a seat, table, countertop, or similar surface.

6.  There must be no food preparation or open food other than that served to customers in the outdoor dining area.

The Texas Food Establishment Rules (TFER) will reflect this new change in upcoming TFER revision.

Full text for Senate Bill 476 please view Texas Legislature Online.

DRAFT RULE: To be announced.   

SB 932 - Summary

UPDATE:  SENTATE BILL 932 (86^th Legislature)

Effective September 1, 2019

SB 932 created new Section 437.0065 in Health and Safety Code Chapter 437.  

The bill limits the permitting fee charged to (a) a farmer for the “sale of food directly to consumers at a farmers’ market, a farm stand, or the farmer’s farm” and (b) “an individual who prepares food for sale at a farmers’ market” to an annual fee of $100.  The permit must be valid for at least one year and “cover sales at all locations within the jurisdiction of the permitting authority.”

Full text for Senate Bill 932 please view Texas Legislature Online. 

HB 234 - Summary

UPDATE:  HOUSE BILL 234 (86^th Legislature)

Effective:  September 1, 2019

HB 234 amends Chapter 250 of the Local Government Code and Chapter 202 of the Property Code to state that municipalities, counties, other local health jurisdictions, may not prohibit or regulate, including by license, permit, or fee, the “occasional sale of lemonade or other nonalcoholic beverages from a stand on private property or in a public park by an individual younger than 18 years of age.”  

HB 234 also amends Chapter 202 of the Property Code to state that a property owners’ association may not adopt or enforce a restrictive covenant that prohibits or regulates, including by permit or fee, the “occasional sale of lemonade or other nonalcoholic beverages from a stand on property located in the subdivision by an individual younger than 18 years of age who has the permission of the property owner. . . .”  The bill further states that the property owners’ association (1) owes no duty of care to persons participating in the beverage sale and (2) is not liable for injuries to persons participating in the beverage sale unless the injuries are the result of “willful or wanton acts or gross negligence of the association.”

Full text for House Bill 234 please view Texas Legislature Online. 

SB 572 - Summary

UPDATE: SENATE BILL 572 (86^th Legislature)

Effective: September 1, 2019

SB 572 amends HSC 437 with significant changes to the allowances and requirements regarding Cottage Food Operators:

1. The bill expands the list of foods that can be produced as cottage foods to include fermented vegetable products; acidified canned goods (plant-based only); pickled fruit and vegetables; frozen raw and uncut fruit and vegetables; and any other food that is not time/temperature control for safety (TCS).
2. The bill sets forth production and labeling requirements for cottage food operators who produce fermented vegetable products, acidified canned goods, and pickled fruit and vegetables.  As a resource for the production requirements, the bill requires DSHS to post certain information on the department website.
3. The bill removes previous language from HSC 437.001(2-b)(C) that restricted location of sale of cottage foods.
4. The bill expands method of sale of cottage foods to include mail order and the internet while still requiring that the product be delivered directly to the consumer by the operator.  Shipping and third-party delivery services are not allowed.
5. The bill sets forth specific labeling requirements, in addition to those already in effect for all cottage food operators, for fermented vegetable products, acidified canned goods, pickled fruit and vegetables, and frozen, raw and uncut fruit and vegetables.

Full text for Senate Bill 572 please view Texas Legislature Online.   

HB 1694 - Summary

UPDATE: House Bill 1694 (86^th Legislature)

Effective: September 1, 2019

HB 1694 amends HSC Chapter 437 to prohibit permitting for food samples at a farm or farmer’s market—including cottage foods.  It prohibits a local HD from regulating samples at a farmer’s market other than sanitary conditions already prescribed in HSC 437.020(c).  It allows inspection to enforce the requirements of HSC 437.020 regarding samples at a farmer’s market.  It also allows a requirement for a permit for food cooked and sold or distributed at a farmer’s market.  It also adds “cottage food” to the definition of “food” at HSC 437.020(2)(F).

Full text for House Bill 1694 please view Texas Legislature Online. 

** FURTHER BILL INFORMATION WILL BE POSTED AS APPROVED **

As of October 2, 2015, there are no draft or proposed rules.

If you have any questions or comments, please contact the Public Sanitation and Retail Food Establishment Group at 1-512-834-6753.