SB-0730, As Passed Senate, December 18, 2014

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 730

A bill to amend 2000 PA 92, entitled

"Food law,"

by amending sections 1105 and 2129 (MCL 289.1105 and 289.2129), as

amended by 2012 PA 178, and by adding section 6152.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1105. (1) As used in this act:

(a) "Adulterated" means food to which any of the following

apply:

(i) It bears or contains any poisonous or deleterious substance

that may render it injurious to health unless the substance is not

an added substance and the quantity of that substance in the food

does not ordinarily render it injurious to health.

(ii) It bears or contains any added poisonous or added

deleterious substance, other than a substance that is a pesticide

chemical in or on a raw agricultural commodity; a food additive; or

a color additive considered unsafe within the meaning of subsection

(2).

(iii) It is a raw agricultural commodity that bears or contains

a pesticide chemical considered unsafe within the meaning of

subsection (2).

(iv) It bears or contains any food additive considered unsafe

within the meaning of subsection (2). However, if a pesticide

chemical has been used in or on a raw agricultural commodity in

conformity with an exemption granted or limitation prescribed under

subsection (2) and the raw agricultural commodity has been

subjected to processing, the residue of that pesticide chemical

remaining in or on that processed food is, notwithstanding the

provisions of subsection (2) and this subdivision, not considered

unsafe if that residue in or on the raw agricultural commodity has

been removed to the extent possible in good manufacturing practice

and if the concentration of that residue in the processed food when

ready to eat is not greater than the tolerance prescribed for the

raw agricultural commodity.

(v) It is or contains a new animal drug or conversion product

of a new animal drug that is unsafe within the meaning of section

360b of the federal act, 21 USC 360b.

(vi) It consists in whole or in part of a diseased,

contaminated, filthy, putrid, or decomposed substance or it is

otherwise unfit for food.

(vii) It has been produced, prepared, packed, or held under

unsanitary conditions in which it may have become contaminated with

filth or in which it may have been rendered diseased, unwholesome,

or injurious to health.

(viii) It is the product of a diseased animal or an animal that

has died other than by slaughter or that has been fed uncooked

garbage or uncooked offal from a slaughterhouse.

(ix) Its container is composed, in whole or in part, of any

poisonous or deleterious substance that may render the contents

injurious to health.

(x) A valuable constituent has been in whole or in part

omitted or abstracted from the food; a substance has been

substituted wholly or in part for the food; damage or inferiority

has been concealed in any manner; or a substance has been added to

the food or mixed or packed with the food so as to increase its

bulk or weight, reduce its quality or strength, or make it appear

better or of greater value than it is.

(xi) It is confectionery and has partially or completely

imbedded in it any nonnutritive object except if, as provided by

rules, the object is of practical functional value to the

confectionery product and would not render the product injurious or

hazardous to health; it is confectionery and bears or contains any

alcohol other than alcohol not in excess of 1/2 of 1% by volume

derived solely from the use of flavoring extracts; or it is

confectionery and bears or contains any nonnutritive substance

except a nonnutritive substance such as harmless coloring, harmless

flavoring, harmless resinous glaze not in excess of 4/10 of 1%,

harmless natural wax not in excess of 4/10 of 1%, harmless natural

gum and pectin or any chewing gum by reason of its containing

harmless nonnutritive masticatory substances which is in or on the

confectionery by reason of its use for some practical functional

purpose in the manufacture, packaging, or storage of such

confectionery if the use of the substance does not promote

deception of the consumer or otherwise result in adulteration or

misbranding in violation of this act. For the purpose of avoiding

or resolving uncertainty as to the application of this subdivision,

the director may issue rules allowing or prohibiting the use of

particular nonnutritive substances.

(xii) It is or bears or contains any color additive that is

unsafe within the meaning of subsection (2).

(xiii) It has been intentionally subjected to radiation, unless

the use of the radiation was in conformity with a rule or exemption

under this act or a regulation or exemption under the federal act.

(xiv) It is bottled water that contains a substance at a level

higher than allowed under this act.

(b) "Advertisement" means a representation disseminated in any

manner or by any means, other than by labeling, for the purpose of

inducing, or which is likely to induce, directly or indirectly, the

purchase of food.

production facility or similar food establishment that finishes a

raw commodity and is integral to the agricultural production of,

and is located at, a farm. An agricultural use operation is not

considered a food processor or retail processing operation for

purposes of personal or real property but must meet those same

standards and licensing requirements as prescribed in this act.

(d) "Bed and breakfast" means a private residence that offers

sleeping accommodations to transient tenants in 14 or fewer rooms

for rent, is the innkeeper's residence in which the innkeeper

resides while renting the rooms to transient tenants, and serves

breakfasts, or other meals in the case of a bed and breakfast

described in section 1107(t)(ii), at no extra cost to its transient

tenants. A bed and breakfast is not a food service establishment if

exempt under section 1107(t)(ii) or (iii).

(e) "Color additive" means a dye, pigment, or other substance

that is made by a process of synthesis or similar artifice or is

extracted, isolated, or otherwise derived, with or without

intermediate or final change of identity from a vegetable, animal,

mineral, or other source, or when added or applied to a food or any

part of a food is capable alone or through reaction with other

substances of imparting color to the food. Color additive does not

include any material that is exempt or hereafter is exempted under

the federal act. This subdivision does not apply to any pesticide

chemical, soil or plant nutrient, or other agricultural chemical

solely because of its effect in aiding, retarding, or otherwise

affecting, directly or indirectly, the growth of other natural

physiological process of produce of the soil and thereby affecting

its color, whether before or after harvest. Color includes black,

white, and intermediate grays.

(f) "Consumer" means an individual who is a member of the

public, takes possession of food, is not functioning in the

capacity of an operator of a food establishment or food processor,

and does not offer the food for resale.

(g) "Contaminated with filth" means contaminated as a result

of not being securely protected from dust, dirt, and, as far as may

be necessary by all reasonable means, from all foreign or injurious

contaminations.

(h) "Continental breakfast" means the serving of only non-

potentially-hazardous food such as a roll, pastry or doughnut,

fruit juice, or hot beverage, but may also include individual

portions of milk and other items incidental to those foods.

(i) "Core item" means a provision in the food code that is not

designated as a priority item or a priority foundation item. Core

item includes an both of the following:

(A) An item that usually relates to general sanitation,

operational controls, sanitation standard operating procedures

(SSOPs), facilities or structures, equipment design, or general

maintenance.

(B) The requirements of section 2129(2) and 6152(1).

(j) "Cottage food operation" means a person who produces or

packages cottage food products only in a kitchen of that person's

primary domestic residence within this state.

(k) "Cottage food product" means a food that is not

potentially hazardous food as that term is defined in the food

code. Examples of cottage food product include, but are not limited

to, jams, jellies, dried fruit, candy, cereal, granola, dry mixes,

vinegar, dried herbs, and baked goods that do not require

temperature control for safety. Cottage food product does not

include any potentially hazardous food regulated under 21 CFR parts

113 and 114, examples of which include, but are not limited to,

meat and poultry products; salsa; milk products; bottled water and

other beverages; and home-produced ice products. Cottage food

product also does not include canned low-acid fruits or acidified

vegetables and other canned foods except for jams, jellies, and

preserves as defined in 21 CFR part 150.

(2) Any added poisonous or deleterious substance, food

additive, pesticide chemical in or on a raw agricultural commodity,

or color additive is considered unsafe for the purpose of

subsection (1)(a), unless there is in effect a federal regulation

or exemption from regulation under the federal act, the federal

meat inspection act, 21 USC 601 to 683, the poultry products

inspection act, 21 USC 451 to 472, or another federal statute, or a

rule limiting the quantity of the substance, and the use or

intended use of the substance, and the use or intended use of the

substance conforms to the terms prescribed by the federal

regulation or exemption or the rule.

Sec. 2129. (1) ~~All~~ Subject to subsection (2), all of the

following food establishments shall employ a minimum of 1

managerial employee as a food safety manager who is currently

certified under a personnel certification program accredited by the

American national standards institute, utilizing the conference for

food protection standards:

(a) A food service establishment that is not any of the

following:

(i) ~~Operating under a~~ A licensed temporary food service

establishment. ~~license.~~

(ii) A vending machine. ~~location.~~

Senate Bill No. 730 (H-1) as amended December 18, 2014

(b) An extended retail food establishment.

retail grocery.

(2) Beginning 2 years after the effective date of the 2014

amendatory act that amended this section and every 5 years

thereafter, a certified food safety manager who supervises the

operations of a food service establishment shall have completed a

food safety training [ ]

containing an allergen awareness component that has been approved

by the department. [The allergen awareness component may be an online

program or a video.] However, a certified food safety manager at a

food service establishment with more than 20 locations within this

state may satisfy this requirement by completing any nationally

recognized food safety training program containing an allergen

awareness component. A food service establishment shall retain

records on the site of the food service establishment documenting

compliance of its certified food safety managers with this

subsection. The department shall enforce this subsection in the

same manner that it enforces other provisions related to certified

food safety managers. This subsection applies until December 31,

2020.

(3) ~~(2)~~ An individual certified under subsection (1) shall be

recognized with full faith and credit by the state and all local

units of government throughout the state.

(4) ~~(3)~~ The department may promulgate rules to do all of the

following:

(a) Develop requirements for retail food establishments to

follow when employing certified food safety managers or personnel.

(b) Set a reasonable date for compliance with the requirements

under subdivision (a) taking into consideration existing local

personnel certification requirements.

maintain, and track certified individuals directly or by contract.

The department may annually adjust the schedule of fees to provide

that the fee charged is sufficient to cover the cost of the

certification tracking program.

(d) Implement and enforce the requirements ~~described in~~

developed under subdivision (a).

(5) ~~(4)~~ The certification program developed by the American

national standards institute, as it exists on April 1, 2008, is

incorporated by reference. The department may adopt updates to the

certification program accreditation standards in subsection (1) by

rule.

(6) ~~(5)~~ This section does not prohibit any local legislative

body from implementing a food handler program, an employee health

certification program, or a manager certification program, if it is

not in conflict with this section.

Sec. 6152. (1) Until December 31, 2020, each food service

establishment in this state shall prominently display in the staff

area a poster developed and approved by the department relative to

food allergy awareness that includes, but is not limited to,

information regarding the risk of an allergic reaction, or post the

information from the poster in a different, readable notice in the

staff area.

(2) The department may promulgate rules to carry out this