SB-0144, As Passed Senate, May 19, 2015

SUBSTITUTE FOR

SENATE BILL NO. 144

A bill to amend 2000 PA 92, entitled

"Food law,"

by amending sections 1109, 2129, and 3115 (MCL 289.1109, 289.2129,

and 289.3115), section 1109 as amended by 2012 PA 178 and section

2129 as amended by 2014 PA 516.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1109. As used in this act:

(a) "Guide for the control of molluscan shellfish" means

section II, model ordinance, national shellfish sanitation program

guide for the control of molluscan shellfish, 2009, recommendations

of the U.S. ~~department of health and human services, public health~~

~~service, food and drug administration.~~Department of Health and

Human Services, Public Health Service, Food and Drug

Administration.

(b) "HACCP plan" means a written document that delineates the

formal procedures for following the hazard analysis and critical

control point principles developed by the ~~national advisory~~

~~committee on microbiological criteria for foods.~~National Advisory

Committee on Microbiological Criteria for Foods.

food establishment that the director determines requires immediate

action to prevent endangering the health of people.

(d) "Inspection" means the checking or testing of observable

practices against standards established in or adopted by this act,

accompanied by a report of findings.

(e) "Juice" means the aqueous liquid expressed or extracted

from 1 or more fruits or vegetables, purees of the edible portions

of 1 or more fruits or vegetables, or any concentrates of such

liquid or puree.

(f) "Label" means a display of written, printed, or graphic

matter ~~upon~~ on the immediate container of any article and includes

a requirement imposed under this act that any word, statement, or

other information appearing on the display also appear on the

outside container or wrapper of the retail package of the article

or be easily legible through the outside container or wrapper.

(g) "Labeling" means all labels and other written, printed, or

graphic matter upon an article, any of its containers or wrappers,

or accompanying the article.

(h) "License limitation" means an action by which the director

imposes restrictions or conditions, or both, on a license of a food

establishment.

(i) "License holder" means the person who is legally

responsible for the operation of a food establishment including the

owner, the owner's agent, or other person operating under apparent

authority of the owner and who possesses a valid license to operate

a food establishment.

(j) "Limited food processor" means a food processor that had

in the preceding licensing year or is reasonably anticipated to

have in the current licensing year $25,000.00 or less in annual

gross wholesale sales made or business done in wholesale sales.

Only the food sales from the food processor operation shall be used

in computing the annual gross sales under this subdivision.

(k) "Local health department" means that term as defined in

section 1105 of the public health code, MCL 333.1105, and having

those powers and duties as described in part 24 of the public

health code, MCL 333.2401 to 333.2498.

(l) "Low-risk food" means any of the following:

(i) Raw or prepackaged food that is not potentially hazardous

food (time/temperature control for safety food).

(ii) Potentially hazardous food (time/temperature control for

safety food) that is prepared in a licensed facility and is not

prepared on-site.

(iii) Commercially processed potentially hazardous food

(time/temperature control for safety food) that is fully cooked and

heated only for hot holding.

(m) (l) "Michigan bridge card" means the card used for the

electronic benefit transfer system for food stamp distribution

required under section 14h of the social welfare act, 1939 PA 280,

MCL 400.14h.

(n) ~~(m)~~ "Milk product" means cream, light cream, light

whipping cream, heavy cream, heavy whipping cream, whipped cream,

whipped light cream, sour cream, acidified sour cream, cultured

sour cream, half-and-half, sour half-and-half, acidified sour half-

and-half, cultured sour half-and-half, reconstituted or recombined

milk and milk products, concentrated milk, concentrated milk

products, skim milk, lowfat milk, frozen milk concentrate, eggnog,

buttermilk, cultured milk, cultured lowfat milk, cultured skim

milk, yogurt, lowfat yogurt, nonfat yogurt, acidified milk,

acidified lowfat milk, acidified skim milk, low-sodium milk, low-

sodium lowfat milk, low-sodium skim milk, lactose-reduced milk,

lactose-reduced lowfat milk, lactose-reduced skim milk, aseptically

processed and packaged milk, milk products with added safe and

suitable microbial organisms, and any other milk product made by

the addition or subtraction of milkfat or addition of safe and

suitable optional ingredients for protein, vitamin, or mineral

fortification. Milk product ~~does include~~ includes dietary dairy

products, dairy-based infant formula, ice cream and other frozen

desserts, cheese, butter, and any other product derived from milk.

(o) ~~(n)~~ "Misbranded" means food to which any of the following

apply:

(i) Its labeling is false or misleading in any particular.

(ii) It is offered for sale under the name of another food.

(iii) It is an imitation of another food unless its label bears,

in type of uniform size and prominence, the word "imitation" and

immediately thereafter the name of the food imitated.

(iv) Its container is so made, formed, or filled as to be

misleading.

(v) It is in package form, unless it bears a label containing

both the name and place of business of the manufacturer, packer, or

distributor and an accurate statement of the quantity of the

contents in terms of weight, measure, or numerical count subject to

reasonable variations permitted and exemptions for small packages

established by rules.

(vi) Any word, statement, date, or other labeling required by

this act is not ~~prominently~~ placed on the label or labeling

prominently, conspicuously, and in such terms as to render it

likely to be read and understood by the ordinary individual under

customary conditions of purchase and use.

(vii) It purports to be or is represented as a food for which a

definition and standard of identity have been prescribed by

regulations promulgated under the federal act or by rules, unless

it conforms to the definition and standard and its label bears the

name of the food specified in the definition and standard, and,

insofar as may be required by the regulations or rules, the common

names of optional ingredients, other than spices, flavoring, and

coloring, present in the food.

(viii) It purports to be or is represented to be either of the

following:

(A) A food for which a standard of quality has been prescribed

by this act or rules if its quality falls below the standard unless

its label bears, in ~~such~~ the manner and form ~~as such~~ that the rules

specify, a statement that it falls below ~~such~~ the standard.

(B) A food for which a standard or standards of fill of

container have been prescribed by this act or rules and that falls

below the standard of fill of container applicable, unless its

label bears, in ~~such~~ the manner and form as that the rules specify,

a statement that it falls below the standard.

(ix) It does not bear labeling clearly giving the common or

usual name of the food, if one exists, and if fabricated from 2 or

more ingredients, the common or usual name of each ingredient

except that spices, flavorings, and colorings, other than those

sold as such, may be designated as spices, flavorings, and

colorings, without naming each and except under other circumstances

as established by rules regarding exemptions based upon

practicality, potential deception, or unfair competition.

(x) It bears or contains any artificial flavoring, artificial

coloring, or chemical preservative unless the labeling states that

fact ~~and~~ or under other circumstances as established by rules

regarding exemptions based upon practicality.

(xi) If a food intended for human consumption and offered for

sale, its label and labeling do not bear the nutrition information

required under section 403(q) of the federal act, 21 USC 343.

(xii) It is a product intended as an ingredient of another food

and, when used according to the directions of the purveyor, will

result in the final food product being adulterated or misbranded.

(xiii) It is a color additive whose packaging and labeling are

not in conformity with applicable packaging and labeling

requirements ~~applicable to such color additive prescribed~~ under the

federal act.

(p) ~~(o)~~ "Mobile food establishment" means a food establishment

operating from a vehicle, including a watercraft, that returns to a

mobile food establishment commissary for servicing and maintenance

at least once every 24 hours.

(q) ~~(p)~~ "Mobile food establishment commissary" means an

operation that is capable of servicing a mobile food establishment.

(r) ~~(q)~~ "Nonperishable food" means food that is not perishable

food.

(s) ~~(r)~~ "Perishable food" means any food that the

manufacturer, packer, or retailer, in conjunction with the

department, determines to have a significant risk of spoilage, loss

of value, or loss of palatability within 90 days of the date of

packaging.

(t) ~~(s)~~ "Person" means an individual, sole proprietorship,

partnership, corporation, association, or other legal entity.

(u) ~~(t)~~ "Pesticide chemical" means any substance that, alone,

in chemical combination, or in formulation with 1 or more other

substances, is a pesticide within the meaning of the federal

insecticide, fungicide, and rodenticide act, 7 USC 136 to 136y, and

is used in the production, storage, or transportation of raw

agricultural commodities.

(v) ~~(u)~~ "Principal display panel" means that part of a label

that is most likely to be displayed, presented, shown, or examined

under normal and customary conditions of display for retail sale.

(w) ~~(v)~~ "Priority foundation item" means a provision in the

food code whose application supports, facilitates, or enables 1 or

more priority items. Priority foundation item includes an item that

requires the purposeful incorporation of specific actions,

equipment, or procedures by industry management to attain control

of risk factors that contribute to foodborne illness or injury such

as personnel training, infrastructure, or necessary equipment,

HACCP plans, documentation or record-keeping, and labeling. A

priority foundation item is an item that is denoted in the food

code with a superscript Pf-^Pf.

(x) ~~(w)~~ "Priority item" means a provision in the food code

whose application contributes directly to the elimination,

prevention, or reduction to an acceptable level of hazards

associated with foodborne illness or injury if there is no other

provision that more directly controls the hazard. Priority item

includes an item with a quantifiable measure to show control of

hazards such as cooking, reheating, cooling, or hand washing. A

priority item is an item that is denoted in the food code with a

superscript P-^P.

(y) ~~(x)~~ "Public health code" means 1978 PA 368, MCL 333.1101

to 333.25211.

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

food establishments shall employ a minimum of 1 managerial employee

as a food safety manager, who must be an individual who is

currently certified under a personnel certification program

accredited by the American ~~national standards institute,~~ National

Standards Institute, utilizing the conference for food protection

standards:

(a) A food service establishment ~~that is not any~~ unless 1 or

both of the following apply to the food establishment:

(i) A It is a licensed temporary food service establishment.

(ii) A It is a vending machine.

(b) An extended retail food establishment.

grocery.

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

~~amendatory act that amended this section~~ January 14, 2017 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 program 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) An individual certified under subsection (1) shall be

recognized with full faith and credit by ~~the~~ this state and all

local units of government throughout ~~the~~ this state.

(4) 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 developed under

subdivision (a).

(5) The certification program developed by the American

~~national standards institute,~~ 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) This section does not prohibit ~~any~~ a 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. 3115. (1) A local health department shall promptly review

a license application for a food service establishment, or

including, but not limited to, a vending machine location, to

determine if the application is complete and accurate. A local

health department may return an incomplete or inaccurate

application to a license applicant and request any additional

information it considers necessary to assure completeness or

accuracy of the application.

(2) ~~After~~ Subject to subsection (3), after a local health

department determines that an application under subsection (1) is

proper, complete, and accurate, it shall inspect the proposed or

existing food service establishment, or including, but not limited

to, a vending machine location, to determine compliance with this

act. ~~The inspection shall be conducted by the local health~~

~~department before it makes a recommendation to the department on~~

~~the issuance of a license.~~

(3) If a temporary food establishment will serve only low-risk

food, instead of conducting an inspection under subsection (2), a

local health department, based on a public health risk assessment,

may conduct an in-office consultation, including food safety

education, and operational review of the proposed temporary food

establishment with the license applicant. The person in charge of

the temporary food establishment must be present during the in-

office consultation. A local health department that conducts an in-

office consultation under this subsection may also conduct an

inspection under subsection (2).

(4) A local health department shall conduct an inspection

under subsection (2) or an in-office consultation under subsection

(3), as applicable, before it makes its recommendation to the

department on the issuance of a license.

(5) ~~(3)~~ A local health department shall forward to the

department its recommendation for license approval ~~of the license~~

or approval with limitation. ~~of the license to the department.~~