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FDA Promises to Not Enforce Food Safety Requirements…Yet

The food industry is trying to prepare for the Food Safety Modernization Act (FSMA), in particular, the new requirement (which is likely to have the greatest impact) requiring food facilities to develop and implement written food safety plans. Many clients have asked me what the food safety plan requirement actually means, and when it will become effective.  Perhaps you're wondering the same thing.

In short, the FDA was supposed to have issued regulations in January 2012 outlining the required contents of the food safety plans.  Unfortunately, that deadline has come and gone, and still there are no final regulations.  Despite the FDA's unmet deadline to define what needs to be included in the food safety plans, the requirement for a food safety plan under the FSMA became law in July 2012, leaving the food industry at a standstill. Will processors be penalized? 

Thankfully, the FDA has indicated that it will use its enforcement discretion and not bring enforcement actions against food facilities for failure to have a food safety plan UNTIL the underlying regulations are issued and finalized.  As for when that will be, it's anyone's guess. But in the meantime, the industry has to rely on the FDA's promise not to enforce the law – which is a sticky situation to be in.  Many food processors are still taking steps to prepare for these new legal requirements.

© 2020 Varnum LLPNational Law Review, Volume II, Number 216


About this Author

Varnum's Food Law practice includes more than a dozen attorneys experienced in the sophisticated areas of law that apply to food regulation. We help regulated businesses bring their products to market. In particular, we counsel USDA- and FDA-regulated businesses in the following areas:

  • Product labeling, advertising and other promotional materials.

  • The regulatory scheme affecting or governing such products, including mandatory and voluntary submissions (FDA-required petitions and notifications) and...