PRIOR PRINTER'S NOS. 1752, 1885, 2293 PRINTER'S NO. 2348
No. 1422 Session of 2007
INTRODUCED BY CARROLL, HANNA, BRENNAN, COHEN, COSTA, CURRY,
DERMODY, FABRIZIO, FREEMAN, GEIST, GEORGE, GRUCELA,
HENNESSEY, JOSEPHS, KORTZ, KOTIK, KULA, LEACH, LENTZ,
MAHONEY, M. O'BRIEN, PASHINSKI, READSHAW, SCAVELLO, SHIMKUS,
K. SMITH, SOLOBAY, YUDICHAK, SIPTROTH AND CALTAGIRONE,
JUNE 1, 2007
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
JULY 16, 2007
AN ACT
1 Amending Title 3 (Agriculture) of the Pennsylvania Consolidated
2 Statutes, codifying the Public Eating and Drinking Place Law
3 and the Food Act; providing for the protection of public
4 health and for regulations; requiring licensing; further
5 providing for food employee certification and for farmers'
6 market; providing for penalties; and making related repeals.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Chapter 57 of Title 3 of the Pennsylvania
10 Consolidated Statutes is amended by adding subchapters to read:
11 CHAPTER 57
12 FOOD PROTECTION
13 [(Reserved)]
14 Subchapter
15 A. Retail Food Facility Safety
16 B. Food Safety
17 SUBCHAPTER A
1 RETAIL FOOD FACILITY SAFETY
2 Sec.
3 5701. Short title of chapter.
4 5702. Definitions.
5 5703. License required.
6 5704. Application for license.
7 5705. Term of license.
8 5706. Contents of license.
9 5707. Powers of department.
10 5708. Infectious persons.
11 5709. Linens, equipment and utensils.
12 5710. Retail food facility and employee
13 cleanliness.
14 5711. Toilets, sinks and drains.
15 5712. Revocation of license.
16 5713. School cafeterias and organized camps.
17 5714. Penalties.
18 5715. Retail Food Facility Safety Fund.
19 § 5701. Short title of chapter.
20 This chapter shall be known and may be cited as the Retail
21 Food Facility Safety Law.
22 § 5702. Definitions.
23 The following words and phrases when used in this subchapter
24 shall have the meanings given to them in this section unless the
25 context clearly indicates otherwise:
26 "Bed and breakfast homestead or inn." A private residence
27 which contains ten or fewer bedrooms used for providing
28 overnight accommodations to the public and in which breakfast is
29 the only meal served and is included in the charge for the room.
30 "Employee." The license holder, person in charge, person
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1 having supervisory or management duties, person on the payroll,
2 family member, volunteer, person performing work under
3 contractual agreement or other person working in a retail food
4 facility.
5 "Food employee." An individual working with unpackaged food,
6 food equipment or utensils or food contact surfaces.
7 "Fund." The Retail Food Facility Safety Fund established
8 under section 5715 (relating to Retail Food Facility Safety
9 Fund).
10 "License." A grant to a licensee to operate a retail food
11 facility.
12 "Licensor." Any of the following:
13 (1) The county department of health or joint-county
14 department of health whenever a retail food facility is
15 located in a political subdivision under the jurisdiction of
16 a county department of health or joint-county department of
17 health.
18 (2) The health authorities of cities, boroughs,
19 incorporated towns and first class townships whenever a
20 retail food facility is located in a city, borough,
21 incorporated town or first class township not under the
22 jurisdiction of a county department of health or joint-county
23 department of health.
24 (3) The health authorities of second class townships and
25 second class townships which have adopted a home rule charter
26 which elect to issue licenses under this subchapter whenever
27 a retail food facility is located in a second class township
28 or second class township which has adopted a home rule
29 charter not under the jurisdiction of a county department of
30 health or joint-county department of health.
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1 (4) The Department of Agriculture whenever a retail food
2 facility is located in any other area of this Commonwealth.
3 "Organized camp." A combination of programs and facilities
4 established for the primary purpose of providing an outdoor
5 group living experience for children, youth and adults, with
6 social, recreational and educational objectives, and operated
7 and used for five or more consecutive days during one or more
8 seasons of the year.
9 "Proprietor." A person, partnership, association or
10 corporation conducting or operating a retail food facility
11 within this Commonwealth.
12 "Public eating or drinking place." A place within this
13 Commonwealth where food or drink is served to or provided for
14 the public, with or without charge. The term does not include
15 dining cars operated by a railroad company in interstate
16 commerce or a bed and breakfast homestead or inn.
17 "Raw agricultural commodity." As defined under section 5722
18 (relating to definitions).
19 "Retail food establishment." An establishment which stores,
20 prepares, packages, vends, offers for sale or otherwise provides
21 food for human consumption and which relinquishes possession of
22 food to a consumer directly, or indirectly, through a delivery
23 service such as home delivery of grocery orders or delivery
24 service provided by common carriers. The term does not include
25 dining cars operated by a railroad company in interstate
26 commerce or a bed and breakfast homestead or inn.
27 "Retail food facility." A public eating or drinking place or
28 a retail food establishment.
29 § 5703. License required.
30 (a) Unlawful conduct.--It shall be unlawful for any
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1 proprietor to conduct or operate a retail food facility without
2 first obtaining a license for each retail food facility as
3 provided in this subchapter.
4 (b) Farmers' markets.--A building, structure or place owned,
5 leased or otherwise in possession of a person or municipal
6 corporation or public or private organization, used as a
7 farmers' market by two or more farmers or an association of
8 farmers for the purpose of selling agricultural commodities
9 directly to consumers shall be deemed to be a single retail food
10 facility. A public eating or drinking place within a farmers'
11 market shall be considered to be a retail food facility that is
12 separate and distinct from the farmers' market.
13 (c) Exempt retail food facilities.--The following retail
14 food facilities are exempt from the license requirements of this
15 section, but are subject to inspection and all other provisions
16 of this subchapter:
17 (1) A food bank owned by a charitable nonprofit entity
18 and operated for charitable or religious purposes.
19 (2) A soup kitchen owned by a charitable nonprofit
20 entity and operated for charitable or religious purposes.
21 (3) A retail food facility that operates on no more than
22 three days each calendar year.
23 (4) A school cafeteria.
24 (5) A retail food facility that is owned by a charitable
25 nonprofit entity and that is one or more of the following:
26 (i) Managed by an organization which is established
27 to promote and encourage participation or support for
28 extracurricular recreational activities for youth of
29 primary and secondary public, private and parochial
30 school systems on a not-for-profit basis.
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1 (ii) Offers only foods that are nonpotentially
2 hazardous foods or beverages.
3 (6) A retail food facility in which food or beverages
4 are sold only through a vending machine.
5 (7) A retail food facility in which only prepackaged,
6 nonpotentially hazardous food or beverages are sold.
7 (8) A retail food facility that sells only raw
8 agricultural commodities.
9 (d) Issuance of license.--A retail food facility license
10 shall be issued by the health authorities of cities, boroughs,
11 incorporated towns and first-class townships, and, if electing
12 to issue licenses under this subchapter, second class townships
13 and second class townships which have adopted a home rule
14 charter, whenever a retail food facility is located in a city,
15 borough, incorporated town or township not under the
16 jurisdiction of a county department of health or joint-county
17 department of health, or by the county department of health or
18 joint-county department of health whenever a retail food
19 facility is located in a political subdivision which is under
20 the jurisdiction of a county department of health or joint-
21 county department of health, or in those townships of the second
22 class which are not under the jurisdiction of a county
23 department of health or joint-county department of health and
24 which do not elect to issue licenses under this subchapter, by
25 the department.
26 (e) Inspection.--No license shall be issued until inspection
27 of the retail food facility has been made by the licensor and
28 the retail food facility meets the requirements of this
29 subchapter and the rules and regulations of the department. In
30 the case of license renewals, inspections shall be in accordance
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1 with section 5705 (relating to term of license).
2 (f) Reports.--If the licensor is an entity other than the
3 department, the licensor shall provide the department a copy of
4 any inspection report resulting from any inspection conducted
5 under authority of this subchapter within 15 days of the
6 inspection date. This copy may be sent by electronic methods, as
7 approved by the department. The department may, by regulation,
8 require that inspection reports be submitted in a specific
9 electronic format.
10 (g) Sales and use tax license.--No license shall be issued
11 until the proprietor exhibits proof that the proprietor has
12 applied for or received a sales and use tax license or exemption
13 certificate from the Department of Revenue.
14 (h) Fees.--
15 (1) The fees that may be charged under this subchapter
16 are as follows for the department or as established by
17 ordinance of the governing body and shall be paid into the
18 city, borough, incorporated town, township or county
19 treasury, or to the State Treasury through the department,
20 depending upon the location of the retail food facility:
21 (i) For licensure of a retail food facility that has
22 not been previously licensed, and that is owner operated,
23 and that has a seating capacity of less than 50: $103.
24 (ii) For licensure of a retail food facility that
25 has not been previously licensed and that is not
26 described in subparagraph (i): $241.
27 (iii) For a renewal of a license, or for issuing a
28 license to reflect a change of ownership: $82.
29 (iv) For a duplicate license, for each retail food
30 facility location: $14.
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1 (v) For a temporary license, for a retail food
2 facility that operates on no less than four and no more
3 than 14 days in one physical location in a calendar year,
4 or for an itinerant retail food facility that operates at
5 a fair, festival or similar temporary event no more than
6 three different times in one calendar year: $14.
7 (vi) For conducting a follow-up inspection to review
8 whether changes have been made to correct violations
9 which resulted in noncompliant status determined by a
10 prior inspection:
11 (A) For the second such follow-up inspection
12 during the licensure period: $150.
13 (B) For a third or subsequent follow-up
14 inspection during the licensure period: $300.
15 (vii) For conducting an inspection that is not
16 otherwise required by the department, but that is
17 conducted at the behest of the proprietor of the retail
18 food facility: $150.
19 (viii) For any license described in paragraphs (i)
20 through (v) that is issued for a period of greater than
21 one year by regulation of the department in accordance
22 with section 5705(a), the license fee otherwise
23 prescribed under those paragraphs shall be prorated for
24 the license period.
25 (2) All funds collected by the department under this
26 subsection shall be deposited in the fund.
27 (i) Renewal.--The license shall be renewed in accordance
28 with section 5705.
29 (j) Multiple retail food facilities.--Whenever any
30 proprietor maintains more than one retail food facility within
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1 this Commonwealth, the proprietor shall be required to apply for
2 and procure a license for each retail food facility.
3 § 5704. Application for license.
4 Any person owning or operating or desiring to operate a
5 retail food facility within this Commonwealth shall make
6 application for license to the licensor on forms furnished by
7 the licensor. The forms shall be uniform throughout this
8 Commonwealth and shall set forth such information as the
9 department may require, including the name and address of the
10 applicant, together with all the other information deemed
11 necessary to identify the applicant, provide contact information
12 for the applicant, identify the location of the retail food
13 facility that is the subject of the application and facilitate
14 the licensor's processing of the application. Before granting
15 any license, the licensor shall visit and inspect the retail
16 food facility and may refuse to issue a license if the retail
17 food facility does not meet the requirements of this subchapter
18 or the rules and regulations of the department. The licensor
19 shall state in writing to the proprietor the reason for the
20 refusal.
21 § 5705. Term of license.
22 (a) General rule.--Except as provided in subsection (b),
23 licenses shall be granted for a period of one year from date of
24 issue, or for any other license period that is established by
25 the department through regulation and that uses risk-based
26 factors identified in the current edition of the Model Retail
27 Food Code, published by the Food and Drug Administration, as a
28 basis for determining the appropriate license interval.
29 Application for renewal shall be made one month before
30 expiration of an existing license. A license granted under the
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1 provisions of this subchapter shall be renewed if the most
2 recent inspection by the licensor was conducted within the
3 preceding license period and determined that conditions
4 specified in section 5704 (relating to application for license)
5 with respect to the retail food facility are fulfilled.
6 (b) Temporary license.--A temporary license for a retail
7 food facility that operates on no less than four and no more
8 than 14 days in one calendar year or for a retail food facility
9 operating at a fair, festival or similar temporary event shall
10 be granted with respect to the calendar year in which it is
11 issued.
12 § 5706. Contents of license.
13 Licenses shall specify the date of issuance, the period which
14 is covered, the name of the licensee and the place licensed.
15 Licenses shall be conspicuously displayed at all times in the
16 place thereby licensed. Licenses shall not be transferable.
17 § 5707. Powers of department.
18 (a) Rules and regulations.--The department shall make such
19 reasonable rules and regulations as may be deemed necessary for
20 carrying out the provisions and intent of this subchapter. In
21 promulgating regulations, the department shall be guided by the
22 most current edition of the Model Retail Food Code, published by
23 the United States Department of Health, Food and Drug
24 Administration. The regulatory standards established by the
25 department under this section shall be the standards followed
26 and applied by any licensor with respect to retail food
27 facilities.
28 (b) Suspension or revocation of licenses.--The department
29 may on its own motion, or on complaint after investigation and
30 hearing at which the licensee shall be afforded an opportunity
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1 to be heard, suspend or revoke any license for any violation by
2 the licensee or the licensee's partner, agent, servant or
3 employee of the provisions of this subchapter or of any other
4 act relating to the public health and being applicable to the
5 retail food facility or of the rules and regulations of the
6 department or of any of the terms, conditions or provisions of
7 the license by the licensee, or any of the agents, servants or
8 employees of the licensee. Notice of suspension or revocation,
9 and the reasons therefore, as well as any required notice of
10 hearing, shall be given in writing to the licensee at the
11 address contained in the license. Suspension of license shall be
12 terminated when the violation for which it was imposed has been
13 found, upon inspection, to have been corrected. Whenever a
14 license is suspended or revoked, no part of the fee paid
15 therefore shall be returned to the holder.
16 (c) School cafeterias.--The department shall provide for the
17 inspection of school cafeterias and for training of school
18 cafeteria personnel in accordance with the standards applied to
19 retail food facilities.
20 (d) Inspection.--If a licensor is required to provide the
21 department a copy of an inspection report pursuant to section
22 5703(f) (relating to license required) and fails to comply with
23 that requirement, the department may inspect and license the
24 subject retail food facility, and the licensor that failed to
25 comply with the inspection requirement shall not charge or
26 collect any fee for licensing the subject retail food facility.
27 If the department conducts an inspection, it shall promptly
28 provide the licensor a copy of the inspection report.
29 § 5708. Infectious persons.
30 No proprietor shall allow any food employee to be in a retail
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1 food facility if that person has an infectious or communicable
2 disease, as prohibited under the act of April 23, 1956 (1955
3 P.L.1510, No.500), known as the Disease Prevention and Control
4 Law of 1955, and its attendant regulations related to
5 restrictions on food handlers. The department may promulgate
6 regulations with respect to specific illnesses as related to
7 operations in a retail food facility as it deems necessary for
8 the protection of public health.
9 § 5709. Linens, equipment and utensils.
10 No proprietor shall utilize any linens, equipment or utensils
11 unless the linens, equipment or utensils have been thoroughly
12 cleansed and sanitized in the manner prescribed by regulation of
13 the department.
14 § 5710. Retail food facility and employee cleanliness.
15 All retail food facilities, kitchens, dining rooms and all
16 places where foods are prepared, kept or stored shall be kept in
17 a clean and sanitary condition and be protected from dust, dirt,
18 insects and vermin in the manner prescribed by the regulations
19 of the department. The clothing and hands of employees shall at
20 all times be clean and sanitary. No domestic pets or other
21 animals shall be permitted where food or drink is prepared,
22 handled or stored unless specifically permitted or required
23 under the Americans with Disabilities Act of 1990 (Public Law
24 101-336, 104 Stat. 327) or other Federal or State law. No person
25 shall be permitted to use for living or sleeping purposes any
26 room or place in any retail food facility which is regularly and
27 customarily used for the preparation, handling, storing or
28 serving of food.
29 § 5711. Toilets, sinks and drains.
30 All toilets, hand-wash sinks, tubs, sinks and drains used in
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1 or in connection with any retail food facility shall at all
2 times be kept in a clean and sanitary condition.
3 § 5712. Revocation of license.
4 If a proprietor, after investigation made by the licensor,
5 has failed or refused after a reasonable interval to correct
6 conditions found to constitute a violation of this subchapter,
7 or of the regulations of the department pertaining to retail
8 food facilities, the license shall be revoked.
9 § 5713. School cafeterias and organized camps.
10 Officials of schools and organized camps shall cooperate with
11 the department in the conduct of cafeteria health and safety
12 inspections and shall participate in inspection services and
13 training programs made available by the department.
14 § 5714. Penalties.
15 (a) Criminal penalty.--A person who violates any provision
16 of this subchapter or any rule, regulation, standard or order
17 made under this subchapter commits a summary offense for the
18 first or second offense and shall be subject to a fine not less
19 than $100 but not more than $300. A person who violates any
20 provision of this subchapter or any rule, regulation, standard
21 or order made under this subchapter commits a misdemeanor of the
22 third degree if the violation is a third or subsequent offense
23 and if the violation occurs within two years of the date of the
24 last previous offense.
25 (b) Civil penalty.--In addition to proceeding under any
26 other remedy available at law or in equity for a violation of
27 this subchapter or a rule or regulation adopted or any order
28 issued under this subchapter, the secretary may assess a civil
29 penalty not to exceed $10,000 upon an individual or business for
30 each offense. No civil penalty shall be assessed unless the
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1 person charged has been given notice and opportunity for a
2 hearing in accordance with law. In determining the amount of the
3 penalty, the secretary shall consider the gravity of the
4 violation. Whenever the secretary finds a violation which did
5 not cause harm to human health, the secretary may issue a
6 warning in lieu of assessing a penalty. In case of inability to
7 collect the civil penalty or failure of any person to pay all or
8 any portion of the penalty as the secretary may determine, the
9 secretary may refer the matter to the Attorney General, who
10 shall recover the amount by action in the appropriate court.
11 § 5715. Retail Food Facility Safety Fund.
12 There is hereby created a special fund in the State Treasury
13 to be known as the Retail Food Facility Safety Fund. All funds
14 received or collected by the department under this subchapter
15 shall be deposited in the fund. All moneys in the fund and the
16 accrued interest are appropriated to the department to use to
17 pay any direct or incidental expense incurred in carrying out
18 the responsibilities of the department under this subchapter.
19 These expenses include, but are not limited to, personnel and
20 operating expenses.
21 SUBCHAPTER B
22 FOOD SAFETY
23 Sec.
24 5721. Short title of subchapter.
25 5722. Definitions.
26 5723. Prohibited acts.
27 5724. Temporary or permanent injunctions.
28 5725. Penalties.
29 5726. Detention and condemnation.
30 5727. Temporary permits.
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1 5728. Adulteration of food.
2 5729. Misbranding of food.
3 5730. Regulations to exempt certain labeling requirements.
4 5731. Poisonous or deleterious substances and tolerances.
5 5732. Inspection, sampling and analysis.
6 5733. Rules and regulations.
7 5734. Registration of food establishments.
8 5735. Product registration.
9 5736. Construction of subchapter.
10 5737. Acts not affected.
11 § 5721. Short title of subchapter.
12 This subchapter shall be known and may be cited as the Food
13 Safety Act.
14 § 5722. Definitions.
15 The following words and phrases when used in this subchapter
16 shall have the meanings given to them in this section unless the
17 context clearly indicates otherwise:
18 "Color additive." A material which is a dye, pigment or
19 other substance made by a process of synthesis or similar
20 artifice or extracted, isolated or otherwise derived, with or
21 without intermediate or final change of identity, from a
22 vegetable, animal, mineral or other source and when added or
23 applied to a food is capable, along or through reaction with
24 other substances, of imparting color thereto. The term includes
25 black, white and intermediate grays. The term does not include:
26 (1) Any material which the Secretary of Agriculture, by
27 regulation, determines is used or intended to be used solely
28 for a purpose or purposes other than coloring.
29 (2) Any pesticide chemical, soil or plant nutrient or
30 other agricultural chemical solely because of its effect in
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1 aiding, retarding or otherwise affecting, directly or
2 indirectly, the growth or other natural physiological process
3 of produce of the soil and thereby affecting its color,
4 whether before or after harvest.
5 "Federal acts." The Wholesome Meat Act (Public Law 90-201,
6 21 U.S.C. § 601 et seq.), the Federal Food, Drug, and Cosmetic
7 Act (52 Stat. 1040, 21 U.S.C. § 301 et seq.), the Poultry
8 Products Inspection Act (Public Law 85-172, 21 U.S.C. § 451 et
9 seq.), the Fair Packaging and Labeling Act (Public Law 89-755,
10 15 U.S.C. § 1451 et seq.), the Federal Insecticide, Fungicide,
11 and Rodenticide Act (61 Stat. 163, 7 U.S.C. § 136 et seq.) and
12 the Nutritional Labeling and Education Act of 1990 (Public Law
13 101-535, 104 Stat. 2353).
14 "Food." An article used for food or drink by humans,
15 including chewing gum and articles used for components of any
16 article. The term does not include medicines and drugs.
17 "Food additive." A substance, the intended use of which
18 results or may reasonably be expected to result, directly or
19 indirectly, in its becoming a component or otherwise affecting
20 the characteristics of any food if the substance is not
21 generally recognized among experts qualified by scientific
22 training and expertise to evaluate its safety, as having been
23 adequately shown through scientific procedures or, in the case
24 of a substance used in food prior to January 1, 1958, through
25 either scientific procedures or experience based on common use
26 in food to be safe under the conditions of its intended use. The
27 term does not include the following:
28 (1) A pesticide chemical in or on a raw agricultural
29 commodity.
30 (2) A pesticide chemical to the extent that it is
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1 intended for use or is used in the production, storage or
2 transportation of any raw agricultural commodity.
3 (3) A color additive.
4 (4) Any substance used in accordance with a sanction or
5 approval granted prior to the enactment of this paragraph
6 pursuant to a statute repealed by this act, pursuant to the
7 Poultry Products Inspection Act (Public Law 85-172, 21 U.S.C.
8 § 451 et seq.) or pursuant to the Wholesome Meat Inspection
9 Act (Public Law 90-201, 21 U.S.C. § 601 et seq.).
10 (5) A new animal drug.
11 As used in this definition, the term "substance" includes any
12 substance intended for use in producing, manufacturing,
13 packaging, processing, preparing, treating, transporting or
14 holding food and any source of radiation intended for any use.
15 "Food establishment." A room, building or place or portion
16 thereof or vehicle maintained, used or operated for the purpose
17 of commercially storing, packaging, making, cooking, mixing,
18 processing, bottling, baking, canning, freezing, packing or
19 otherwise preparing, transporting or handling food. The term
20 excludes retail food facilities, retail food establishments,
21 public eating and drinking places and those portions of
22 establishments operating exclusively under milk or milk products
23 permits.
24 "Imitation food." A food that is a substitute for and
25 resembles another food but is nutritionally inferior to that
26 food.
27 "Label." A display of written, printed or graphic matter
28 upon the immediate container of any food. The term "immediate
29 container" does not include package liners.
30 "Labeling." All labels and other written, printed or graphic
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1 matter upon a food or any of its containers or wrappings.
2 "Package." Any container or wrapping in which food is
3 enclosed for delivery or display to retail purchasers. The term
4 does not include the following:
5 (1) Shipping containers or wrappings for the
6 transportation of food in bulk or quantity to manufacturers,
7 packers or processors or to wholesale or retail distributors.
8 (2) Shipping containers or wrappings used by retailers
9 to ship or deliver food to retail customers, if the
10 containers or wrappings bear no printed matter pertaining to
11 food.
12 (3) Containers used for tray pack displays in retail
13 establishments.
14 (4) Transparent containers or wrappings which do not
15 bear written, printed or graphic matter which obscures
16 information required to be displayed on the label.
17 "Pesticide chemical." A substance used in the production,
18 storage or transportation of raw agricultural commodities which,
19 alone or in chemical combination or formulation with one or more
20 other substances, is a pesticide within the meaning of the act
21 of March 1, 1974 (P.L.90, No.24), known as the Pennsylvania
22 Pesticide Control Act of 1973.
23 "Principal display panel." A part of a label that is most
24 likely to be displayed, presented, shown or examined under
25 normal and customary conditions of display for retail sale and
26 is large enough to accommodate all the mandatory information
27 required to be placed on the label.
28 "Public eating and drinking place." As defined in section
29 5702 (relating to definitions).
30 "Raw agricultural commodity." A food in its raw or natural
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1 state, including all fruits which are washed, colored or
2 otherwise treated in their unpeeled, natural form prior to
3 marketing.
4 "Retail food establishment." As defined in section 5702
5 (relating to definitions).
6 "Retail food facility." As defined in section 5702 (relating
7 to definitions).
8 "Secretary." Includes an authorized representative, employee
9 or agent of the Department of Agriculture.
10 § 5723. Prohibited acts.
11 The following acts are prohibited:
12 (1) Manufacture, sale, delivery, consignment, bailment,
13 holding or offering for sale of any food that is adulterated
14 or misbranded, except where a person in good faith delivers
15 or offers to deliver the food and furnishes shipping
16 documents to the secretary.
17 (2) Adulteration or misbranding of any food.
18 (3) Knowingly receiving in commerce any food which is
19 adulterated or misbranded and the delivery or proffered
20 delivery thereof for pay or otherwise.
21 (4) Sale, delivery for sale, holding for sale or
22 offering for sale any article in violation of section 5731
23 (relating to poisonous or deleterious substances and
24 tolerances).
25 (5) Refusal to permit during normal business hours entry
26 to, inspection of or taking of a sample or access to or
27 copying of any record at a food establishment as authorized
28 under section 5732(a)(2) and (3) (relating to inspection,
29 sampling and analysis).
30 (6) Removal or disposal of a detained or embargoed food
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1 article in violation of section 5726 (relating to detention
2 and condemnation).
3 (7) Alteration, mutilation, destruction, obliteration or
4 removal of the whole or any part of the labeling of a food or
5 the doing of any other act with respect to a food, if the act
6 is done while the food is held for sale and results in the
7 food being adulterated or misbranded.
8 (8) Forging, counterfeiting, simulating, falsely
9 representing or using without proper authority any mark,
10 stamp, tag, label or other identification device authorized
11 or required by regulation promulgated under this subchapter.
12 (9) Use by any person to his own advantage or revealing,
13 other than to the secretary or the courts when relevant in
14 any judicial proceeding under this subchapter, of any
15 information acquired under authority of this subchapter
16 concerning any method or process which, as a trade secret or
17 confidential trade information, is entitled to protection.
18 (10) Holding of any potentially hazardous food as that
19 term is defined in the most current edition of the Model
20 Retail Food Code, published by the Food and Drug
21 Administration, at unsafe temperatures in violation of an
22 applicable regulation issued under this subchapter.
23 (11) Failure to register with the department under the
24 provisions of section 5734 (relating to registration of food
25 establishments).
26 (12) Use of wording which incorrectly indicates or
27 implies that a label or product has received approval of the
28 department. A food establishment may not claim registration
29 either upon its label or package or otherwise, except as
30 provided in section 5735 (relating to product registration).
20070H1422B2348 - 20 -
1 (13) Sale of confectionery containing alcohol at a level
2 above one-half of 1% by volume.
3 (14) Failure by a carrier to make records showing the
4 movement in commerce of any food or the holding thereof
5 during or after the movement and the quantity, shipper and
6 consignee thereof available for one year after the initial
7 date of movement of the food in commerce.
8 § 5724. Temporary or permanent injunctions.
9 In addition to any other remedies provided in this
10 subchapter, the secretary may apply to the Commonwealth Court or
11 to any other court having jurisdiction for a temporary or
12 permanent injunction restraining a person from violating this
13 subchapter or any regulation adopted under this subchapter.
14 § 5725. Penalties.
15 (a) Criminal penalties.--A person who violates any provision
16 of this subchapter or any rule, regulation, standard or order
17 made under this subchapter commits a summary offense for the
18 first or second offense. A person who violates this subchapter
19 or any rule, regulation, standard or order made under this
20 subchapter commits a misdemeanor of the third degree if the
21 violation is a third or subsequent offense and if the violation
22 occurs within two years of the date of the last previous
23 offense.
24 (b) Civil penalties.--In addition to proceeding under any
25 other remedy available at law or in equity for a violation of
26 this subchapter, or a rule or regulation adopted or any order
27 issued under this subchapter, the secretary may assess a civil
28 penalty not to exceed $10,000 upon an individual or business for
29 each offense. No civil penalty shall be assessed unless the
30 person charged has been given notice and opportunity for a
20070H1422B2348 - 21 -
1 hearing in accordance with law. In determining the amount of the
2 penalty, the secretary shall consider the gravity of the
3 violation. Whenever the secretary finds a violation which did
4 not cause harm to human health, the secretary may issue a
5 warning in lieu of assessing a penalty. In case of inability to
6 collect the civil penalty or failure of any person to pay all or
7 any portion of the penalty as the secretary may determine, the
8 secretary may refer the matter to the Attorney General, who
9 shall recover the amount by action in the appropriate court.
10 (c) Guaranty.--
11 (1) No prosecution shall be sustained under the
12 provisions of this subchapter for the manufacture, delivery,
13 consignment, bailment, holding or sale of or offering for
14 sale, exposing for sale or having in possession with intent
15 to sell any adulterated or misbranded article against a
16 person from whom the article of food, sample or portion was
17 obtained by the department if the person can establish a
18 guaranty to the effect that the article of food is not
19 adulterated or misbranded within the meaning of this
20 subchapter, was adulterated or misbranded prior to coming
21 into the possession of the person and the person did not know
22 or have reason to know of the adulteration or misbranding or
23 was adulterated or misbranded after if left the possession
24 and control of the person. The guaranty must be signed by the
25 supplier, manufacturer, wholesale dealer, jobber or
26 distributor from whom the articles of food were purchased or
27 procured.
28 (2) The guaranty to afford protection shall contain the
29 name and address of the supplier, manufacturer, wholesale
30 dealer, jobber or distributor making the sale of the article
20070H1422B2348 - 22 -
1 of food to the person holding the guaranty. A supplier,
2 manufacturer, wholesale dealer, jobber or distributor giving
3 a guaranty under the provisions of this subchapter may be
4 held responsible and may be proceeded against for the
5 adulteration or misbranding of any article of food sold under
6 the guaranty and shall be subject to the penalties provided
7 for violation of this subchapter. A guaranty shall not
8 operate as a defense to prosecution for a violation of the
9 provisions of this subchapter if the person holding the
10 guaranty continues to sell the same food after written or
11 printed notice from the secretary that the article is
12 adulterated or misbranded within the meaning of this
13 subchapter. However, if the person violated the provisions of
14 this subchapter by having stored, transported, exposed or
15 kept the article in a way or manner to render it diseased,
16 contaminated or unwholesome, the person may be proceeded
17 against for a violation.
18 (d) Minor violations.--Nothing in this subchapter shall be
19 construed as requiring prosecution or institution of a
20 proceeding under this subchapter for minor violations of this
21 subchapter if the secretary believes that the public interest
22 will be adequately served in the circumstances by a suitable
23 written notice or warning.
24 § 5726. Detention and condemnation.
25 (a) Marking detained food.--Whenever the secretary has
26 probable cause to believe that food is adulterated or
27 misbranded, the secretary shall affix to the container or
28 wrapping a tag or other marking. The tag or marking shall give
29 notice that:
30 (1) The food may be adulterated or misbranded and shall
20070H1422B2348 - 23 -
1 be detained.
2 (2) It is unlawful to remove the food from the food
3 establishment or to dispose of it without approval of the
4 secretary.
5 (b) Determination and appeal.--The secretary shall determine
6 whether a food detained under this subchapter may be sold,
7 delivered, consigned, held or offered for sale as is or whether
8 it shall be relabeled, reprocessed or destroyed within 40 days
9 of issuance of the detention order. Any determination by the
10 secretary that the food shall be relabeled, reprocessed or
11 destroyed shall be subject, within 30 days of the determination,
12 to appeal by the owner or operator of the food establishment or
13 the manufacturer or owner of the food to the court of common
14 pleas of the county in which the food was located. The detention
15 order shall expire after five working days from the issuance of
16 the order, unless the secretary confirms the order. The order
17 shall clearly and concisely state the facts on which it is
18 based.
19 (c) Relabeling.--If the secretary determines that the
20 adulteration or misbranding can be corrected by a proper label
21 or reprocessing and the determination is not appealed within the
22 time permitted, the secretary may direct that the food be
23 released to the claimant to label or process under the
24 supervision of the secretary. The relabeled or reprocessed food
25 shall not be released into the market until the secretary has
26 executed an order indicating that the food is no longer in
27 violation of this subchapter.
28 (d) Order for destruction.--Food detained under this
29 subchapter shall be destroyed by the owner under the supervision
30 of the secretary, if the secretary determines that the food is
20070H1422B2348 - 24 -
1 unfit for human consumption and the food cannot be reconditioned
2 so as to be made fit for human consumption and the determination
3 is not appealed within the time permitted. Food detained under
4 this subchapter may be used as animal feed or for other
5 beneficial use, provided that such use is in compliance with
6 other applicable statutes, rules, regulations, standards and
7 orders. The owner shall pay all costs of destruction.
8 § 5727. Temporary permits.
9 Temporary permits granted by Federal agencies for interstate
10 shipment of experimental packs of food varying from the
11 requirements of definitions and standards of identity in Federal
12 acts shall be effective in this Commonwealth under the
13 conditions provided in the permits. The secretary may issue
14 intrastate permits where they are necessary to the completion of
15 an investigation and where the interests of consumers are
16 safeguarded for foods not complying with definitions, standards
17 of identity and State laws and regulations. The permits shall be
18 for a period not to exceed one year, although the permit may be
19 extended for a period of up to one additional year if a new
20 standard of identity has been applied for under section 5733
21 (relating to rules and regulations). The secretary may revoke a
22 permit after notice to the affected party if the application
23 contains misleading statements or if the secretary determines
24 that unfair competitive advantage is gained through the issuance
25 of the permit or that the need no longer exists for the permit.
26 § 5728. Adulteration of food.
27 A food shall be deemed adulterated:
28 (1) If it bears or contains any poisonous or deleterious
29 substance which may render it injurious to health. However,
30 if the substance is not an added substance, the food shall
20070H1422B2348 - 25 -
1 not be considered adulterated under this section if the
2 quantity of the substance in the food does not ordinarily
3 render it injurious to health.
4 (2) If it bears or contains any added poisonous or added
5 deleterious substance which is unsafe within the meaning of
6 section 5731 (relating to poisonous or deleterious substances
7 and tolerances). This paragraph does not apply to a pesticide
8 chemical in or on a raw agricultural commodity, a food
9 additive or a color additive.
10 (3) If it is a raw agricultural commodity and bears or
11 contains a pesticide chemical which is unsafe within the
12 meaning of section 5731, except that where a pesticide
13 chemical has been used in or on a raw agricultural commodity
14 with an exemption granted or tolerance prescribed under
15 section 5731 or under any of the Federal acts and the raw
16 agricultural commodity has been subjected to processing such
17 as canning, cooking, freezing, dehydrating or milling, the
18 residue of the pesticide remaining in or on the processed
19 food shall, notwithstanding the provisions of section 5731
20 and this paragraph, not be deemed unsafe if the residue in or
21 on the raw agricultural commodity has been removed to the
22 extent possible in good manufacturing practice and the
23 concentration of the residue in the processed food when ready
24 to eat is not greater than the tolerance prescribed for the
25 raw agricultural commodity.
26 (4) It if bears or contains any food additive which is
27 unsafe within the meaning of section 5731 or under any of the
28 Federal acts.
29 (5) If it consists in whole or in part of any diseased,
30 contaminated, filthy, putrid or decomposed substance or is
20070H1422B2348 - 26 -
1 otherwise unfit for food.
2 (6) It is has been produced, prepared, packed or held
3 under unsanitary conditions so that it may have become
4 contaminated with filth or may have been rendered diseased,
5 unwholesome or injurious to health.
6 (7) If it is, in whole or in part, the product of a
7 diseased animal or of an animal which has died otherwise than
8 by slaughter.
9 (8) If its container is composed, in whole or in part,
10 of any poisonous or deleterious substance which may render
11 the contents injurious to health, unless the container is
12 fabricated or manufactured with good manufacturing practice
13 as that standard is defined and delineated by any of the
14 Federal acts and their regulations.
15 (9) If it has been intentionally subjected to radiation,
16 unless the use of the radiation was in conformity with a
17 regulation or exemption in effect under section 5731 or under
18 one of the Federal acts.
19 (10) If:
20 (i) any valuable constituent has been, in whole or
21 in part, omitted or abstracted therefrom;
22 (ii) any substance has been substituted wholly or in
23 part;
24 (iii) damage or inferiority has been concealed in
25 any manner; or
26 (iv) any substance has been added thereto or mixed
27 or packed so as to increase its bulk or weight or reduce
28 its quality or strength or make it appear better or of
29 greater value than it is.
30 (11) If it bears or contains any color additive which is
20070H1422B2348 - 27 -
1 unsafe within the meaning of section 5731 or under one of the
2 Federal acts.
3 (12) If it bears or contains eggs processed by or egg
4 products derived from a manufacturing, processing or
5 preparing method wherein whole eggs are broken using a
6 centrifuge-type egg breaking machine that separates the egg's
7 liquid interior from the shell.
8 § 5729. Misbranding of food.
9 (a) General rule.--A food shall be misbranded:
10 (1) If its labeling is false or misleading in any way.
11 (2) If it is offered for sale under the name of another
12 food.
13 (3) If it is an imitation of another food, unless its
14 label bears, in type of uniform size and prominence, the word
15 "imitation" and, immediately thereafter, the name of the food
16 that is simulated.
17 (4) If its container is so made, formed or filled as to
18 be misleading.
19 (5) If it is in a package that does not bear a label
20 containing:
21 (i) The name and place of business of the
22 manufacturer, packer or distributor.
23 (ii) An accurate statement of the quantity of the
24 contents in terms of weight, measure or numerical count.
25 Reasonable variations are permitted and exemptions as to
26 small packages shall be established in regulations
27 promulgated by the secretary.
28 (6) If it is represented as a food for which a
29 definition and standard of identity has been prescribed by
30 regulation under this subchapter or under any of the Federal
20070H1422B2348 - 28 -
1 acts, unless it conforms to the definition and standard and
2 its label bears the name of the food specified in the
3 definition and standard and the common names of optional
4 ingredients, other than spices, flavoring and coloring,
5 present in the food.
6 (7) Unless its label bears the following:
7 (i) The common or usual name of the food, if any.
8 (ii) If made from two or more ingredients, the
9 common or usual name of each ingredient is listed in
10 descending order of predominance by weight, except that
11 spices, flavorings and colorings not required to be
12 certified under any of the Federal acts, other than those
13 sold as such, may be designated as spices, flavorings and
14 colorings without naming each.
15 (8) If it is represented for special dietary uses,
16 unless its label bears such information concerning its
17 vitamin, mineral and other dietary properties as determined
18 by regulation to be necessary and in order to inform
19 purchasers as to its value for such use.
20 (9) If it bears or contains any artificial flavoring,
21 artifical coloring or chemical preservative, unless it bears
22 labeling stating that fact. Exemptions shall be established
23 by regulations to the extent that compliance with
24 requirements of this paragraph is impracticable. The
25 provisions of this paragraph or paragraphs (6) and (7) with
26 respect to artificial coloring shall not apply in the case of
27 butter, cheese or ice cream. The provisions of this paragraph
28 with respect to chemical preservatives shall not apply to a
29 pesticide chemical when used in or on a raw agricultural
30 commodity which is the produce of the soil.
20070H1422B2348 - 29 -
1 (10) If it is a raw agricultural commodity bearing or
2 containing a pesticide chemical applied after harvest, unless
3 the shipping container of the commodity bears labeling which
4 declares the presence of the chemical and the common or usual
5 name and function of the chemical. A declaration shall not be
6 required when the commodity is removed from the shipping
7 container and is held or displayed for sale at retail in
8 accordance with the custom of the trade.
9 (11) If it is a color additive, unless its packaging and
10 labeling are in conformity with the packaging and labeling
11 requirements applicable to color additives in department
12 regulations.
13 (12) If, at the site of purchase of the particular food,
14 a sign, placard or other graphic matter relating to the food
15 is false or misleading in any particular.
16 (b) Exceptions.--The provisions of subsection (a)(1) through
17 (11) shall not apply to the following:
18 (1) Bakery goods sold at retail by the bakery directly
19 to the consumer in a store or market stand operated by the
20 bakery. The bakery goods must be made by the bakery, the
21 bakery must guarantee that they are in compliance with this
22 act in all other respects and the required information in
23 subsection (a)(1) through (9) must be available to the public
24 at the point-of-sale.
25 (2) Bakery goods sold to the operators of retail food
26 facilities when the required information in subsection (a)(1)
27 through (11) is available to the public on the premises of
28 the retail food facility.
29 (c) Nonpackaged food.--Food offered for retail sale in other
30 than package form shall be accompanied by a sign, placard or
20070H1422B2348 - 30 -
1 notice listing the ingredients in descending order of
2 predominance by weight.
3 § 5730. Regulations to exempt certain labeling requirements.
4 The department shall promulgate regulations exempting from
5 any labeling requirement food which is, in accordance with the
6 practice of the trade, to be processed, labeled or repacked in
7 substantial quantities at establishments other than those where
8 originally processed or packed if the food is not adulterated or
9 misbranded under this subchapter upon removal from the
10 processing, labeling or repacking establishments.
11 § 5731. Poisonous or deleterious substances and tolerances.
12 (a) Additions to food.--A poisonous or deleterious substance
13 added to a food, except where the substance is required in its
14 production and cannot be avoided by good manufacturing practice,
15 shall be deemed to be unsafe unless added in compliance with the
16 Federal acts.
17 (b) Pesticide chemicals in or on raw agricultural
18 commodities.--A poisonous or deleterious pesticide chemical, or
19 any chemical which is not generally recognized among experts
20 qualified by scientific training and experience to evaluate the
21 safety of pesticide chemicals as safe for use, added to a raw
22 agricultural commodity shall be deemed unsafe unless added in
23 compliance with the Federal acts.
24 (c) Unsafe food additives.--A food additive shall, with
25 respect to any particular use or intended use, be deemed to be
26 unsafe for the purposes of the application of section 5728(4)
27 (relating to adulteration of food) unless it and its intended
28 use conform to the terms of an exemption which is in effect
29 under this section or unless there is in effect, and it and its
30 intended use are in conformity with, a regulation issued under
20070H1422B2348 - 31 -
1 this section prescribing the conditions under which the additive
2 may be safely used. A food which is in compliance with a
3 regulation relating to a food additive shall not, by reason of
4 bearing or containing an additive in accordance with the
5 regulations, be considered adulterated within the meaning of
6 section 5728(4).
7 § 5732. Inspection, sampling and analysis.
8 (a) Inspection.--For purposes of enforcement of this
9 subchapter, the secretary is authorized, upon presenting
10 appropriate credentials to the owner, operator or agent in
11 charge:
12 (1) To enter at reasonable times any factory, warehouse
13 or food establishment in which food is or was manufactured,
14 processed, packed or held for introduction into commerce or
15 to enter any vehicle used to transport or hold the food in
16 commerce.
17 (2) To inspect at reasonable times, within reasonable
18 limits and in a reasonable manner the factory, warehouse,
19 food establishment or vehicle and all pertinent materials,
20 containers and labeling and to obtain samples necessary to
21 administer this subchapter.
22 (3) To have access to and to copy all records of
23 carriers showing the movement in commerce of any food or the
24 holding thereof during or after the movement, and the
25 quantity, shipper and consignee thereof if the secretary has
26 probable cause to believe that the movement or holding of
27 food is in violation of this subchapter or department
28 regulations.
29 (4) To obtain a sample of any food at a retail food
30 facility for such analysis as may be necessary to determine
20070H1422B2348 - 32 -
1 compliance with this subchapter if:
2 (i) a sample is collected under authority of this
3 paragraph, the secretary shall, upon completion of the
4 inspection and prior to leaving the facility, provide the
5 owner, operator or agent in charge a receipt describing
6 the sample obtained; and
7 (ii) a food sample is collected under authority of
8 this paragraph, the retail food facility from which the
9 sample was collected may bill the secretary for the fair
10 market value of the sample.
11 (b) Report of inspection.--Upon completion of an inspection
12 of a factory, warehouse or other food establishment and prior to
13 leaving the premises, the secretary shall give to the owner,
14 operator or agent in charge a written report of the findings of
15 the inspection.
16 (b.1) Interagency coordination.--The department shall share
17 inspection reports or tests results that indicate human illness
18 related to food consumption or food handling practices, or to
19 other threats to the safety of the food supply, with the
20 Department of Health, the Department of Environmental Protection
21 or any other Commonwealth agency as necessary to develop a
22 comprehensive, coordinated interagency approach to protecting
23 public health and safeguarding the food supply.
24 (c) Collection of samples.--During an inspection of a
25 factory or other food establishment where food is manufactured,
26 processed, packed, stored or offered for sale, the secretary may
27 obtain a sample of any food for such analysis as is necessary to
28 determine compliance with this subchapter.
29 (d) Receipt for samples.--If the secretary has obtained any
30 sample in the course of the inspection, the secretary shall,
20070H1422B2348 - 33 -
1 upon completion of the inspection and prior to leaving the
2 premises, give to the owner, operator or agent in charge a
3 receipt describing the sample obtained.
4 (e) Payment of samples.--The food establishment from which
5 samples are collected may bill the secretary for the fair market
6 value of the samples.
7 § 5733. Rules and regulations.
8 (a) Nature of rules.--The secretary shall be charged with
9 the enforcement of this subchapter and shall promulgate rules,
10 regulations and food standards necessary for its proper
11 enforcement. The rules, regulations and food standards shall
12 conform and shall be construed to conform with the purposes
13 expressed in section 5736 (relating to construction of
14 subchapter). Except to the extent that they are inconsistent
15 with the regulations adopted by subsection (f), the rules,
16 regulations and food standards in effect on September 2, 1994,
17 shall continue in effect unless subsequently modified by
18 regulations promulgated by the secretary.
19 (b) Local inspection.--The secretary shall enter into
20 agreements with any county, city, borough, incorporated town or
21 township of this Commonwealth for the enforcement of this
22 subchapter and the rules, regulations and food standards
23 promulgated under this subchapter in food establishments,
24 provided that the county, city, borough, incorporated town or
25 township satisfies the minimum standards established by the
26 secretary and the minimum standards required to be eligible for
27 State grants pursuant to the act of August 24, 1951 (P.L.1304,
28 No.315), known as the Local Health Administration Law. Nothing
29 in this subchapter shall prohibit any county, city, borough,
30 incorporated town or township which was licensing food
20070H1422B2348 - 34 -
1 establishments in accordance with the Local Health
2 Administration Law on September 2, 1994, from continuing to
3 license such food establishments in accordance with the Local
4 Health Administration Law. No county, city, borough,
5 incorporated town or township, shall ordain or enforce
6 requirements of any kind or description related to sanitation,
7 food safety, inspections, standards and labeling other than
8 those promulgated by the secretary in accordance with this
9 subchapter or adopted in accordance with subsection (f).
10 (c) Reciprocal inspection.--The secretary is authorized to
11 enter into reciprocal agreements with other jurisdictions to
12 insure inhabitants of this Commonwealth that food sold in this
13 Commonwealth complies with this subchapter and its regulations.
14 The agreements may be for reciprocal inspection and labeling
15 review. The secretary may approve or accept inspection and
16 labeling requirements of other jurisdiction with respect to
17 food.
18 (d) Uniform regulation.--In reaching agreements with
19 counties, cities, boroughs, incorporated towns or townships and
20 reciprocal agreements with other jurisdictions, the provisions
21 of this subchapter and its regulations shall be considered as
22 establishing uniform requirements and regulations for food
23 establishments throughout this Commonwealth as defined in
24 section 5722 (relating to definitions).
25 (e) Interagency agreements.--Nothing in this subchapter
26 shall prohibit a Commonwealth agency which was regulating and
27 inspecting food establishments in accordance with Subchapter A
28 (relating to retail food facility safety) on September 2, 1994,
29 from continuing to regulate and inspect food establishments in
30 accordance with Subchapter A.
20070H1422B2348 - 35 -
1 (f) Adoption of Federal regulations.--All regulations and
2 supplements thereto or revisions thereof adopted under the
3 Federal acts which relate to food on, before or after the
4 effective date of this subchapter are hereby adopted as
5 regulations in this Commonwealth and shall remain in effect
6 unless subsequently modified by regulations promulgated by the
7 secretary.
8 (g) Definitions.--As used in this section, the phrase "other
9 jurisdictions" shall means the United States of America or any
10 state, territory or possession thereof or any other country.
11 § 5734. Registration of food establishments.
12 (a) General rule.--Subject to the rules and regulations
13 adopted by the secretary, it shall be the duty of every person
14 operating a food establishment within this Commonwealth to
15 register with the secretary as a food establishment. This
16 registration requirement shall not be construed to exempt food
17 establishments from licensing requirements of any county, city,
18 borough, incorporated town or township in accordance with the
19 act of August 24, 1951 (P.L.1304, No.315), known as the Local
20 Health Administration Law.
21 (b) Application.--The application for registration shall be
22 made on a form to be supplied by the secretary upon request of
23 the applicant.
24 (c) Fee.--The registration fee shall be $35 per food
25 establishment per year.
26 (d) Exception.--Vehicles used primarily for the
27 transportation of any consumer commodity in bulk or quantity to
28 manufacturers, packers, processors or wholesale or retail
29 distributors are exempt from the provisions of this section.
30 (e) Single food establishment.--For purposes of this
20070H1422B2348 - 36 -
1 section, food establishments which are located at the same
2 address and operated by the same person shall be deemed to be a
3 single food establishment.
4 § 5735. Product registration.
5 The secretary may promulgate regulations allowing food
6 establishments to label their food products as having been
7 registered by the department. "Reg. Penna. Dept. Agr." shall be
8 the approved abbreviation. This registration label shall be
9 limited to food products prepared or packed in a food
10 establishment registered under section 5734 (relating to
11 registration of food establishments).
12 § 5736. Construction of subchapter.
13 (a) General rule.--The provisions of this subchapter and the
14 regulations promulgated under this subchapter shall be construed
15 in a manner that is consistent with the Federal acts and
16 regulations promulgated under those acts. The secretary shall
17 not ordain or enforce requirements relating to sanitation, food
18 safety, food standards and labeling requirements of any kind or
19 description other than those provided for in the Federal acts
20 unless the proposed regulation meets all of the following:
21 (1) is justified by compelling and unique local
22 conditions;
23 (2) protects an important public interest that would
24 otherwise be unprotected;
25 (3) relates to subject matter that is primarily local in
26 nature and the Federal agency with responsibility over the
27 subject matter is not exercising its jurisdiction with
28 respect to the subject matter;
29 (4) would not cause a food to be in violation of any
30 applicable requirements under the Federal acts; and
20070H1422B2348 - 37 -
1 (5) would not unduly burden interstate commerce.
2 (b) Secretary to participate in rulemaking.--The secretary
3 is encouraged to participate in rulemaking under the Federal
4 acts and, if necessary, to pursue Federal rulemaking as is
5 deemed necessary for the protection of the citizens of this
6 Commonwealth through the Federal petition and rulemaking
7 process.
8 § 5737. Acts not affected.
9 Nothing in this subchapter shall be construed to abrogate or
10 supersede any provision or regulation adopted under:
11 (1) The act of July 2, 1935 (P.L.589, No.210), referred
12 to as the Milk Sanitation Law, the act of August 8, 1961
13 (P.L.975, No.436), referred to as the Milk Adulteration and
14 Labeling Act, and the act of September 1, 1965 (P.L.420,
15 No.215), known as The Frozen Dessert Law.
16 (2) The act of August 24, 1951 (P.L.1304, No.315), known
17 as the Local Health Administration Law, with regard to
18 licensure, regulation and inspection of a public eating or
19 drinking place, as defined in section 5702 (relating to
20 definitions), which is not a food establishment under this
21 subchapter.
22 (3) Subchapter A (relating to retail food facility
23 safety).
24 Section 2. Sections 6502, 6503 and 6504 of Title 3 are
25 amended to read:
26 § 6502. Definitions.
27 The following words and phrases when used in this chapter
28 shall have the meanings given to them in this section unless the
29 context clearly indicates otherwise:
30 ["Advisory board" or "board." The Food Employee
20070H1422B2348 - 38 -
1 Certification Advisory Board.]
2 "Certificate." A certificate of completion issued by a
3 certification program that has been evaluated and listed by an
4 accrediting agency that has been recognized by the Conference
5 for Food Protection Standards for Accreditation of Food
6 Protection Manager Certification Program.
7 "Conference for Food Protection." An independent, national
8 voluntary nonprofit organization to promote food safety and
9 consumer protection. Participants in this organization include
10 Federal, State and local regulatory agencies, universities, test
11 providers, certifying organizations, consumer groups, food
12 service and retail store trade associations and retail food
13 facility operators. The objectives of the organization include
14 identifying and addressing food safety problems and promoting
15 uniformity of regulations in food protection.
16 "Employee." As defined under section 5702 (relating to
17 definitions).
18 "Food establishment." [A room, building, place or portion
19 thereof or vehicle maintained, used or operated for the purpose
20 of selling to the public, commercially storing, packaging,
21 making, cooking, mixing, processing, bottling, baking, canning,
22 freezing, packing or otherwise preparing, transporting or
23 handling food. The term includes retail food stores and public
24 eating and drinking licensees, except those portions of
25 establishments operating exclusively under milk or milk products
26 permits and those portions of establishments operating
27 exclusively under USDA inspection. The term does not include
28 dining cars operated by a railroad company in interstate
29 commerce or a bed and breakfast, homestead or inn as defined in
30 the act of May 23, 1945 (P.L.926, No.369), referred to as the
20070H1422B2348 - 39 -
1 Public Eating and Drinking Place Law.] As defined in section
2 5722 (relating to definitions).
3 "Person in charge." A person designated by a retail food
4 facility operator to be present at a retail food facility and
5 responsible for the operation of the retail food facility at the
6 time of inspection.
7 ["Potentially hazardous food." A food which consists in
8 whole or in part of milk or milk products, eggs, meats, poultry,
9 fish, shellfish, edible crustaceans or other ingredients,
10 including synthetic ingredients, and which is in a form capable
11 of supporting rapid and progressive growth of infectious or
12 toxicogenic microorganisms. The term does not include foods that
13 have a pH level of 4.6 or below or a water activity of 0.85 or
14 less under standard conditions or food products in hermetically
15 sealed containers processed to maintain commercial sterility.]
16 "Public eating [and] or drinking place." A public eating or
17 drinking place as defined in [the act of May 23, 1945 (P.L.926,
18 No.369), referred to as the Public Eating and Drinking Place
19 Law.] section 5702 (relating to definitions).
20 "Retail food establishment." As defined in section 5702
21 (relating to definitions).
22 "Retail food facility." A public eating or drinking place or
23 a retail food establishment.
24 ["Supervisory employee." An owner or a person employed by or
25 designated by the business owner to fulfill the requirements of
26 this chapter.]
27 § 6503. Certification [advisory board and] programs.
28 (a) [Members of board.--The secretary shall appoint persons
29 to serve as members of the Food Employee Certification Advisory
30 Board. Representatives shall be selected to represent the
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1 following groups for a term of two, three or four years to be
2 determined by the secretary:
3 (1) The chairman and minority chairman of the
4 Agricultural and Rural Affairs Committee of the Senate or
5 their designees and the chairman and minority chairman of the
6 Agricultural and Rural Affairs Committee of the House of
7 Representatives or their designees.
8 (2) A consumer representative.
9 (3) The Secretary of Agriculture or the secretary's
10 designee.
11 (4) Two representatives of production agriculture.
12 (5) Representatives, including at least one person
13 recommended by each of the following: Pennsylvania
14 Association of Milk Dealers, Pennsylvania Restaurant
15 Association, Pennsylvania Food Merchants Association,
16 Pennsylvania Convenience Store Council, Pennsylvania Bakers
17 Association, Pennsylvania Food Processors Association,
18 National Federation of Independent Businesses, Pennsylvania
19 Petroleum Marketers & Convenience Store Association, Local
20 1776 UFCW, Pennsylvania Retailers Association, the Licensed
21 Beverage Association, Pennsylvania Tourism and Lodging
22 Association, Associated Petroleum Industries, Pennsylvania
23 Veterinary Medical Association, County Commissioners
24 Association of Pennsylvania, Pennsylvania League of Cities
25 and Municipalities, Pennsylvania State Association of
26 Boroughs, Pennsylvania State Association of Township
27 Commissioners, Pennsylvania State Association of Township
28 Supervisors and Pennsylvania School Food Service Association.
29 At least one representative shall have experience in the
30 field of public health.] (Reserved).
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1 (b) [Chairman of board.--The secretary or the secretary's
2 designee shall serve as the chairman of the advisory board.]
3 (Reserved).
4 (c) Certification programs.--[The advisory board shall
5 review and recommend certification programs submitted by
6 individuals or organizations to ensure adequate training of
7 supervisory employees of food establishments.] The department
8 shall recognize certification programs including examinations
9 developed under those programs that are evaluated and listed by
10 an accrediting agency that has been recognized by the Conference
11 for Food Protection as conforming to the Conference for Food
12 Protection Standards for Accreditation of Food Protection
13 Manager Certification Program.
14 (c.1) [Other duties.--For the purpose of complying with the
15 requirements of section 6504(g)(1) (relating to certification of
16 employees), the secretary shall convene a meeting of the
17 advisory board no later than March 1, 2003.] (Reserved).
18 (d) Certification of [supervisory] employees.--[The
19 supervisory employees] An employee shall be certified [by the
20 department] following [the completion of training programs
21 recommended by the advisory board and approved by the
22 department. The department shall adopt food safety protection
23 and training standards for the certification of supervisory
24 employees who are responsible for the storage, preparation,
25 display or serving of foods to the public in establishments
26 regulated by the department or local health organizations. These
27 standards shall be adopted by the department to ensure that,
28 upon successfully passing a test, the supervisory employee has
29 demonstrated adequate food protection knowledge. These standards
30 shall also provide for a certification program which authorizes
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1 private or public agencies to conduct and approve tests and
2 certify the results of these tests to the department. At least
3 one supervisory employee of a food establishment shall have
4 passed the test and received a certificate attesting thereto.
5 Employees shall have a period of 90 days after employment to
6 pass the required test.] demonstration of food safety protection
7 knowledge by the successful completion of an examination
8 conducted by or pursuant to an accredited certification program
9 recognized by the department under subsection (c). A retail food
10 facility shall have a period of three months after licensing
11 under Ch. 57 Subch. A (relating to retail food facility safety)
12 within which to comply with this chapter.
13 (e) Preemption.--Except as provided in subsection (f), the
14 regulation of food safety protection and training standards for
15 employees of [food establishments] retail food facilities is
16 preempted by the Commonwealth.
17 (f) Local programs.--Any food employee certification program
18 established by a county, city, borough, incorporated town or
19 township prior to September 1, 1994, may remain in effect.
20 § 6504. Certification of employees.
21 (a) General rule.--[Food establishments] A retail food
22 facility shall maintain certification records on [respective
23 supervisory employees] persons in charge. Each [food
24 establishment shall employ a person having supervisory
25 authority] retail food facility shall have a person in charge
26 who holds a valid [department food employee] certificate[.]
27 present at the retail food facility at all hours of operation.
28 (a.1) Exemption.--Notwithstanding the provisions of
29 subsection (a), the department shall, by regulation, exempt
30 categories of retail food facilities from the requirement that a
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1 certified supervisory employee PERSON IN CHARGE be present at <--
2 all hours of operation. The regulation shall consider risk-based
3 factors identified in the current edition of the Model Retail
4 Food Code, published by the Food and Drug Administration, to
5 identify these categories of retail food facilities.
6 (b) Examination.--[No certificate shall be issued unless the
7 applicant has successfully completed a training course and
8 passed an examination recommended by the advisory board and
9 approved by the department.] (Reserved).
10 (c) Compliance.--
11 (1) (Reserved).
12 (2) A [food establishment] retail food facility exempt
13 under section 6510(d) (relating to exemptions) may
14 voluntarily seek certification under this section.
15 (3) Except as provided in section 6510, compliance with
16 this chapter by a [food establishment] retail food facility
17 shall be mandatory. [by July 1, 2004. Section 6503(e)
18 (relating to certification advisory board and programs) shall
19 not apply to any food establishment prior to July 1, 2004,
20 unless that food establishment complies with this chapter.]
21 (d) Employee turnover.--[Food establishments] Retail food
22 facilities which are not in compliance because of employee
23 turnover or other loss of certified [personnel] employees shall
24 have three months from the date of loss of certified [personnel]
25 employees to comply.
26 (e) Maintenance and inspection of records.--Names and
27 certificate numbers of certified [personnel] employees shall be
28 maintained at the place of business and shall be made available
29 for inspection by the department.
30 (f) Period of certification.--Certification shall be in
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1 effect for [five years.] the certification interval prescribed
2 by the accredited certification program described in section
3 6503(c) (relating to certification programs). Renewal of
4 certification shall be based on the [completion of courses
5 recommended by the advisory board and approved by the
6 department. The courses shall not include a written
7 examination.] successful completion of the certification
8 requirements of an accredited certification program as described
9 in section 6503(c).
10 (g) [Training program.--
11 (1) Training programs to prepare candidates for
12 certification examinations and the administration of the
13 examination shall be made available throughout this
14 Commonwealth through cooperation with industry and others and
15 approved by the department. In order to meet the requirements
16 of this paragraph, the department shall promulgate
17 regulations with the approval of the board no later than July
18 1, 2004, which establish training programs providing for the
19 following considerations which include:
20 (i) The existence and operation of a department-
21 approved employee training program on safe food handling
22 conducted by the food establishment.
23 (ii) The limited handling of potentially hazardous
24 food.
25 (iii) The number of hours necessary to prepare
26 employees for safe food handling due to the food
27 establishment's scope of business.
28 (iv) The demonstration of satisfactory knowledge and
29 proficiency in the safe handling of food as approved by
30 the department.
20070H1422B2348 - 45 -
1 (2) The department shall develop and administer a
2 training program for food establishments voluntarily seeking
3 certification under subsection (c)(2). The General Assembly
4 may appropriate funds to offset the cost of the program for
5 food establishments exempt under section 6510(d).]
6 (Reserved).
7 (h) [Mitigating factor.--
8 (1) If a food establishment complies with this chapter,
9 the compliance shall be given appropriate consideration as a
10 mitigating factor in determining if a food establishment
11 shall be assessed more than the minimum fine or civil penalty
12 required by law in any action to recover fines or penalties
13 for a violation of the act of July 7, 1994 (P.L.421, No.70),
14 known as the Food Act.
15 (2) This subsection shall expire July 1, 2000.]
16 (Reserved).
17 Section 2.1. Section 6506 of Title 3 is repealed:
18 [§ 6506. Reciprocal agreements.
19 The department may accept certifications issued in other
20 states that have comparable requirements for certification
21 provided the department and the other state jurisdiction have
22 entered into a reciprocal agreement to accept each state's
23 certification program as meeting the provisions of this
24 chapter.]
25 Section 2.2. Sections 6507 and 6508 of Title 3 are amended
26 to read:
27 § 6507. Suspension of certification.
28 Certification may be suspended or revoked by the department
29 if the holder or person fails to comply with this or other
30 sanitation regulations or [the act of May 23, 1945 (P.L.926,
20070H1422B2348 - 46 -
1 No.369), referred to as the Public Eating and Drinking Place
2 Law, or the act of July 7, 1994 (P.L.421, No.70), known as the
3 Food Act] Chapter 57 (relating to food protection). Prior to
4 suspension or revocation, the certificate holder shall be given
5 the opportunity for a hearing before the department.
6 § 6508. Civil penalties.
7 In addition to proceeding under any other remedy available at
8 law or in equity for a violation of a provision of this chapter
9 or a rule or regulation adopted thereunder or any order issued
10 pursuant thereto, the department may assess a civil penalty not
11 to exceed $300 for the first offense or not to exceed $1,000 for
12 subsequent offenses upon a person or [food establishment] retail
13 food facility for each offense. No civil penalty shall be
14 assessed unless the person charged has been given notice and
15 opportunity for a hearing on the charge in accordance with law.
16 This subchapter does not empower the local health department
17 described in local authorities to assess the civil penalties
18 described in this section.
19 Section 2.3. Section 6509 of Title 3 is repealed:
20 [§ 6509. Fees.
21 (a) Change by regulation.--All fees imposed by this chapter
22 shall remain in effect until changed by the department by
23 regulation subject to the act of June 25, 1982 (P.L.633,
24 No.181), known as the Regulatory Review Act. The department
25 shall propose to change those fees by regulation following
26 consultation with the advisory board.
27 (b) Fee for certification.--The department shall issue or
28 approve the issuance of a certification document to the person
29 upon the successful completion of the approved training program.
30 A fee of $20 shall be charged by the department for this service
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1 unless changed by regulation.
2 (c) Payments to municipalities.--Local health departments
3 created in accordance with the act of August 24, 1951 (P.L.1304,
4 No.315), known as the Local Health Administration Law, may
5 enforce the provisions of this chapter as it pertains to public
6 eating and drinking licensees. Each local health department
7 shall be reimbursed by the department in an amount equal to 50%
8 of the civil penalties levied and collected by the department
9 pursuant to this chapter in each such jurisdiction.]
10 Section 2.4. Sections 6510 and 8101 of Title 3 are amended
11 to read:
12 § 6510. Exemptions.
13 (a) Prepackaged food.--[Food establishments]
14 (1) Retail food facilities where only commercially
15 prepackaged food is handled and sold are exempt from this
16 chapter.
17 (2) Retail food facilities that handle and sell food
18 other than commercially prepackaged food are exempt from this
19 chapter during time periods or work shifts when only
20 commercially prepackaged food is sold.
21 (b) Nonpotentially hazardous food.--[Food establishments]
22 (1) Retail food facilities that handle only
23 nonpotentially hazardous food are exempt from this chapter.
24 (2) Retail food facilities that handle and sell
25 potentially hazardous food are exempt from this chapter
26 during time periods or work shifts when only nonpotentially
27 hazardous food is handled and sold.
28 (c) Food [manufacturing facilities] establishments.--Food
29 [manufacturing facilities which are engaged in the manufacture
30 of prepackaged foods and which do not manufacture potentially
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1 hazardous food] establishments are exempt from this chapter.
2 (d) Exempt [organizations] retail food facilities.--Except
3 as set forth in section 6504(c)(2) (relating to certification of
4 employees), the following [organizations] retail food facilities
5 are exempt from this chapter:
6 (1) A [food establishment] retail food facility managed
7 by an organization which is a tax-exempt organization under
8 section 501(c)(3) of the Internal Revenue Code of 1986
9 (Public Law 99-514, 26 U.S.C. § 501(c)(3)).
10 (2) A [food establishment] retail food facility managed
11 on a not-for-profit basis by an organization which is a
12 volunteer fire company or an ambulance, religious,
13 charitable, fraternal, veterans, civic, agricultural fair or
14 agricultural association or any separately chartered
15 auxiliary of any of the above associations.
16 (3) A [food establishment] retail food facility managed
17 by an organization which is established to promote and
18 encourage participation and support for extracurricular
19 recreational activities for youth of primary and secondary
20 public, private and parochial school systems on a not-for-
21 profit basis.
22 § 8101. [Farmers' market.
23 For the purpose of section 14(e) of the act of July 7, 1994
24 (P.L.421, No.70), known as the Food Act, any building, structure
25 or place owned, leased or otherwise in possession of a person or
26 municipal corporation or public or private organization, used or
27 intended to be used by two or more farmers or an association of
28 farmers for the purpose of selling food directly to consumers
29 shall be deemed to be a single food establishment.] (Reserved).
30 Section 3. Repeals are as follows:
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1 (1) The General Assembly declares as follows:
2 (i) The repeal under paragraph (2)(i) is necessary
3 because the fees described in that provision are supplied
4 by 3 Pa.C.S. Ch. 57 Subch. A.
5 (ii) The repeal under paragraph (2)(ii) is necessary
6 because the material is supplied by 3 Pa.C.S. Ch. 57
7 Subch. A.
8 (iii) The repeal under paragraph (2)(iii) is
9 necessary because the material is supplied by 3 Pa.C.S.
10 Ch. 57 Subch. B.
11 (2) Repeals are as follows:
12 (i) Section 602-A(16) of the act of April 9, 1929
13 (P.L.177, No.175), known as The Administrative Code of
14 1929, is repealed.
15 (ii) The act of May 23, 1945 (P.L.926, No.369),
16 referred to as the Public Eating and Drinking Place Law,
17 is repealed.
18 (iii) The act of July 7, 1994 (P.L.421, No.70),
19 known as the Food Act, is repealed.
20 Section 4. This act shall take effect as follows:
21 (1) The amendment of 3 Pa.C.S. § 6504(a) shall take
22 effect on the effective date of the regulations promulgated
23 under 3 Pa.C.S. § 6504(a.1), or two years from the effective
24 date of this section, whichever occurs first.
25 (2) The remainder of this act shall take effect in 60
26 days.
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