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New FDA Guidance on COVID-19 is Less Specific Than Un-Issued CDC Guidance Would Have Been and Arrives as Many Restaurants Have Already Re-Opened for Dine-In Service in Several States

Food safety in restaurants is regulated at the state and local level.  Most states have fully or partially adopted the model Food Code published by the U.S. Food and Drug Administration (FDA) to address the safety and protection of food offered at retail and in food service.  The Food Code, however, does not address pandemics and special rules for reducing the potential spread of COVID-19 vary among the states that plan to or have already permitted restaurants to re-open for dine-in service.  For example, Alaska, which allowed restaurants to re-open for dine-in service on April 24th, limits restaurants to 50% capacity, and Missouri, which permitted restaurants to re-open on May 4th, requires 6-foot spacing between tables, with no strict limit on capacity except there are to be no more than 10 people at a single table.

On May 8, 2020, FDA issued two documents, a checklist and an infographic, to assist retail food establishments that were closed or partially closed during the COVID-19 pandemic in preparing to reopen.  Topic areas in FDA’s guidance include: Facility Operations, Water/Plumbing/Ice, Food Contact and Non-Food Contact Surfaces, Food Temperature Control, Product Inspection and Rotation, Dishwashing Equipment, Handwashing Stations, Employee Health Screening, and Social Distancing.  These new guidance documents supplement and expand upon FDA’s April 9, 2020 guidance document aimed more at carry-out and delivery food service during the pandemic, as discussed here.

FDA’s guidance is much more general than a previously shelved document prepared by the Centers for Disease Control and Prevention (CDC) that was reported to make very specific and detailed recommendations for restaurants to re-open safely.  For example, whereas the CDC would have specifically recommended installing sneeze guards at cash registers, the FDA document merely lists “partitions” as an example of a measure that that could help to minimize face-to-face contact.  Further, with respect to limiting dine-in capacity, FDA simply advises restaurants to take measures “to minimize face-to-face contact that allows, to the extent possible, at least a 6-foot distance between workers, customers, and visitors.”  Other interesting details of FDA’s guidance document include advice to contact suppliers to ensure deliveries are scheduled and able to be fulfilled; to clean, disinfect, and sanitize with products that meet EPA’s criteria; and to follow the CDC guidance and practices for employee health checks/screenings.

© 2020 Keller and Heckman LLPNational Law Review, Volume X, Number 132
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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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