Following on the heels of the federal government's move into the regulation of menu nutritional labeling, the Food and Drug Administration (FDA) is now encouraging states to adopt stricter uniform retail food safety standards. After recently concluding a 10-year study of retail food safety measures, the FDA has found compliance with state and local food safety regulations to be lacking.

The study examined five risk factors—food from unsafe sources, poor personal hygiene, inadequate cooking, improper holding of food (time and temperature) and contaminated food contact surfaces and equipment—at more than 800 retail food establishments during 1998, 2003 and 2008. Areas identified as particularly problematic include personal hygiene, food handling and the cleanliness of food contact surfaces and equipment.

On October 22, 2010, the FDA issued a Trend Analysis Report on the Occurrence of Foodborne Illness Risk Factors taken from the study. The FDA found that food safety compliance has improved to varying degrees across the entire industry over the past 10 years, but further improvements are needed. Notably, the study found that the presence of a food protection manager on staff significantly increased food safety compliance.

Based on this report, the FDA has announced that it is seeking to improve food safety practices in retail food establishments and has recommended that states adopt the FDA's National Retail Food Regulatory Program Standards. The FDA is also encouraging the industry to adopt certification programs for food protection managers and for states and localities to require certified personnel to be on staff. The FDA's press release can be viewed at

The impact of the FDA's efforts is unclear since, unlike the menu labeling requirements implemented by the Patient Protection and Affordable Care Act of 2010, the federal government does not have the authority to mandate a uniform federal set of retail establishment food safety regulations. While the FDA can promote the adoption of specific standards, individual states and local authorities continue to have primary authority over many aspects of retail food establishments, including food safety, and they are free to ignore, or go beyond, the FDA's recommendations.

All food retailers, including restaurant operators, need to be aware of which regulatory schemes govern their operations at each of their locations.

For additional information on FDA menu labeling efforts, please see "FDA Clarifies Nutrition Labeling Requirements for Chain Restaurant Menus" in the October 7, 2010 Franchise Alert.