OTA Issue 4 2016

www.ortrucking.org

Issue 4 | 2016

SAFETY

SAFETY MANAGEMENT COUNCIL

Preparing Your Operations

for Compliance with the Food Modernization Act

By Kevin M. Anderson, Esq., Associate at Anderson & Yamada PC

n April 6, 2016 the FDA published its final rule on the

Sanitary Transportation of Human and Animal Food

(STF). The STF is one of seven foundational rules

mandated by the Food Modernization Act, which was signed

into law by President Obama in 2011. This new law shifts the

focus of the FDA from responding to reports of food

adulteration to taking a proactive, preventative approach to

food safety.

The goal of the STF is to prevent practices during transportation

that create food safety risks, such as failure to properly

refrigerate food, inadequate cleaning of vehicles between loads,

and failure to properly protect food. The rule establishes

requirements for shippers (which includes brokers), loaders,

carriers by motor or rail, and receivers involved in transporting

human and animal food to use sanitary practices to ensure the

safety of that food.

There are four key requirements of the STF:

1. Vehicles and Transportation Equipment

The design

and maintenance of vehicles and transportation equipment

must ensure that it does not cause the food that it transports

to become unsafe.

2.Transportation Operations

Measures taken during

transportation must ensure food safety, such as adequate

temperature controls, preventing contamination of ready to

eat food from touching raw food, protection of food from

contamination by non-food items in the same load or

previous load, and protection of food from cross-contract,

i.e., the unintentional incorporation of a food allergen.

3.Training

Training of carrier personnel in sanitary

transportation practices and documentation of the training.

This training is required when the carrier and shipper agree

that the carrier is responsible for sanitary conditions during

transport.

4. Records

Maintenance of records of written procedures,

agreements and training (required of carriers). Generally,

these records must be kept for 12 months.

The STF requirements will not apply to businesses, i.e. shippers

and carriers, with less than $500,000 in annual revenue.

Businesses with fewer than 500 employees and less than $27.5

million annual revenue will have two years, until April 6, 2008,

to comply with the regulations. All other businesses will be

required to comply with the regulations beginning April 6, 2017.

While the statutory compliance deadlines are in the future, shippers

are starting to impose the regulations by contract. Further, the STF

assumes that shippers and carriers will enter into contractual

arrangements that assign the responsibility for the various

regulatory requirements. With that in mind it is imperative that

you review your Shipper-Carrier and Broker-Carrier contracts.

Specific contractual clauses to negotiate include:

Require notice of food shipments from your shipper

Require that the shipper provide handling instructions for

each shipment

Agreement that failure to comply with instructions, in and of

itself, is not grounds for a damage claim (require proof of

actual contamination, adulteration, or damage to cargo)

Agreement for a joint inspection of “adulterated” goods with a

qualified third-party

Do not provide indemnity for any damage caused by your

compliance with the shipper’s handling instructions or the

shipper’s failure to provide instructions

Do not agree to requirements that cannot be operationally met

The one rule that does not change in trucking is that all the

other rules are constantly changing. If you need additional help

with reviewing your contracts to ensure statutory and

operational compliance with the STF, Anderson and Yamada,

P.C. is able to help.

About Kevin M. Anderson

Kevin M. Anderson focuses on transportation, small business, and

litigation matters for the firm’s clients. He earned his JD from the

University of Denver Sturm College of Law, Denver, Colorado, in

2008. He is currently on the Board of Directors of OTA's Safety

Management Council.