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Food Regulation Act of 2001
Bill 14-154

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Chairman Linda W. C Cropp, at the request of the Mayor

A BILL IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

Chairman Linda W. Cropp, at the request of the Mayor, introduced the following bill, which was referred to the Committee on Human Services. 

To amend An Act Relating to the adulteration of foods and drugs in the District of Columbia, approved February 17, 1898 (30 Stat. 247; D.C. Code §33-104) to safeguard the public health and ensure that food provided to consumers in the District is safe, unadulterated, and honestly presented to authorize the Mayor to adopt the United States Food and Drug Administration's Model Food Code Regulations with any necessary amendments thereto, to promulgate rules to implement the act, and to establish new administrative and civil remedies as well as criminal penalties for violations of the act or rules promulgated pursuant to this act; to amend the Good Faith Donor and Donee Act of 1981, effective October 8, 1981 (D.C. Law 439; D.C. § 33-801) to make a conforming amendment; to amend An Act To establish standard weights and measures for the District of Columbia to define the duties of the Superintendent of Weights, Measures and Markets of the District of Columbia, and for other purposes, approved March 3, 1921 (41 Stat. 1224; D.C. § 10-132) to transfer to the Mayor the authority to promulgate regulations governing markets in the District of Columbia; to amend An Act Making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June thirtieth, eighteen hundred and ninety-six, and for other purposes, approved March 2, 1895 (28 Stat. 758; D.C. Code § 6-501) to authorize the Mayor to promulgate rules with respect to food and food establishments instead of the Council; to amend Section 513 of Title 24 of the District of Columbia Regulations No. 74-39, 21 DCR 1285 (December 23, 1974) to make a conforming amendment; to repeal An Act To prevent the adulteration of candy in the District of Columbia, approved May 5, 1898 (30 Stat. 398; D.C. Code §§ 33-201 - 33-203); to repeal An Act To regulate within the District of Columbia the sale of milk, cream, and ice cream, and for other purposes, approved February 27, 1925 (43 Stat. 1004; D.C. Code §§ 33-301 - 33-312); to repeal An Act Relating to the sale of horse meat or food products thereof in the District of Columbia, approved July 3, 1943 (57 Stat. 372; D.C. Code §§ 33401 - 33-403); to repeal An Act To prevent the sale of unwholesome food in the District of Columbia, approved Dec. 16, 1941 (55 Stat. 808; D.C. Code § 22 -3419); and to repeal Health Regulations, effective August 22, 1967, Title 8-6:108; 35 DCR 3249 (May 6, 1988) pertaining to the importation, preparation, processing, production, transportation, service, storage, distribution, and sale of food for public or private consumption in the District of Columbia.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Food Regulation Act of 2001 ".

Sec. 2. An Act Relating to the adulteration of foods and drugs in the District of Columbia, approved February 17, 1898 (30 Stat. 247; D.C. Code § 33-101 et sue.), is amended as follows:

(a) Section 2 (D.C. Code § 33 -102) is amended as follows:  

(1) The second sentence is revised to read as follows:

"The term `food' as used in this act shall mean a raw, cooked, or processed edible substance, ice, beverage, or ingredient used or intended for use or for sale in whole or in part for human consumption, or chewing gum."; and

(2) By designating the existing text as subsection "(a)" and by adding new subsections "(b)", "(c)", "(d)" and "(e)" to read as follows:

"(b) The term 'food establishment' as used in this act, shall include an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption including:

"(1) A restaurant; satellite or catered feeding location; catering operation, if the operation provides food directly to a consumer, or a conveyance used to transport people or to a market, a vending location, an institution or a food bank;

"(2) An establishment that relinquishes possession of food to a consumer directly or indirectly through a delivery service such as home delivery of grocery orders or restaurant takeout orders, or a delivery service that is provided by common carriers;

"(3) An establishment that includes an element of the operation of an establishment, such as a motorized vehicle or cart or a central preparation facility that supplies vending locations or satellite feeding locations unless the vending locations are authorized by the Council of the District of Columbia pursuant to An Act to authorize the Commissioners of the District of Columbia to make police regulations for the government of said District, approved January 26, 1887 (D.C. Code § 1-315) or the feeding locations are licensed by the Mayor;

"(4) An establishment that includes an operation that is conducted in a mobile, stationary, temporary, or permanent facility or location where consumption is on or off the premises, regardless of whether there is a charge for the food;

"(5) All private clubs, employer-sponsored cafeterias or restaurants, schools, churches, residential treatment facilities, and similar facilities, with the exception of subsections (c)(5) through (c)(9) of this section; or

"(6) An eating and drinking establishment as set forth in An Act To extend the health regulations of the District of Columbia to Government restaurants within the District of Columbia, approved December 20, 1944, (58 Stat. 826; D.C. Code § 6-1301);

"(c) The term 'food establishment' does not include:

"(1) An establishment that offers only prepackaged foods that are not potentially hazardous; 

"(2) A produce stand that only offers whole, uncut, fresh fruits and vegetables;

"(3) A food processing plant;

"(4) A kitchen in a private home if only food that is not potentially hazardous is prepared for sale or service at a function such as a religious or charitable organization's bake sale and if the consumer is informed by a clearly visible placard at the sales or service location that the food is prepared in a kitchen that is not subject to regulation and inspection by the Mayor;

"(5) An area where food that is prepared as specified in subparagraph (6) is sold or offered for human consumption;

"(6) A kitchen in a private home, including a child development facility; or a bed-and-breakfast operation that prepares and offers food to guests if the home is owner-occupied, the number of available guest bedrooms does not exceed 6, breakfast is the only meal offered, the number of guests served does not exceed 18, and the consumer is informed by statements contained in published advertisements, mailed brochures, and placards posted at the registration area that the food is prepared in a kitchen that is not regulated and inspected by the Mayor;

"(7) A private home that receives catered or home-delivered food; 

"(8) United States Senate and House of Representatives restaurants; or 

"(9) A private club or a church, which serves occasional meals at not more than twenty-four (24) events during a twelve (12) month period."

"(d) The term 'embargo' as used in this act, shall mean an administrative restriction or exclusion on the distribution of food or food products.

"(e) The term 'condemnation' as used in this act, shall mean an administrative restriction or exclusion on the use of specific equipment, utensils or linens."

(b) Section 3 (D.C. Code § 33-103) is amended as follows:

(1) In subsection (a) (D.C. Code § 33-103(1)), by inserting the following language at the end thereof:

"Provided, that an offense shall not be deemed to be committed under this section in the following cases:

"(A) Where the order calls for a drug inferior to such standard, or where such difference is made known by being plainly written or printed on the package;

"(B) Where the drug is mixed with any matter or ingredient not injurious to health and not intended fraudulently to increase its bulk, weight, or measure or conceal its inferior quality, if at the time such drug is delivered to the purchaser it is made known to him that such drug is so mixed.";

(2) By amending subsection (b) (D.C. Code § 33-103(2)) to read as follows: 

"(b) The term `adulterated food' means any food:

"(1) That bears or contains any poisonous or deleterious substance which may render it injurious to health; except that, if the poisonous or deleterious substance is not an added substance and the quantity of the poisonous or deleterious substance in the food does not ordinarily render it injurious to health, the food is not adulterated for the purpose of this act;

"(2) That bears or contains any added poisonous or added deleterious substance (other than a substance that is 'a pesticide chemical residue in or on a raw agricultural commodity or processed food, a food additive, a color additive, or a new animal drug) that is unsafe within the meaning of section 406 of the Federal Food Act (21 U. S.C. 346);

"(3) That bears or contains a pesticide chemical residue that is unsafe within the meaning of section 408 of the Federal Food Act (21 U.S.C. 346a);

"(4) That is, bears, or contains any food additive that is unsafe within the meaning of section 409 of the Federal Food Act (21 U.S. C. 348), or a new animal drug (or conversion product thereof) that is unsafe within the meaning of section 512 of the Federal Food Act (21 U.S.C. 360b);

"(5) That consists, in whole or in part, of any filthy, putrid, or decomposed substance, or is otherwise unfit for food;

"(6) That has been prepared, packed or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health;

"(7) That, in whole or in part, is the product of a diseased animal or of an animal which has died otherwise than by slaughter;

"(8) That is in a container that is composed, in whole or in part, of any poisonous or deleterious substance, which may render the contents injurious to health;

"(9) That intentionally has been subjected to radiation, unless the radiation was used in conformity with a rule or exemption in effect pursuant to section 409 of the Federal Food Act (21 U.S.C. 348);

"(10) To or from which any valuable constituent has been omitted or abstracted, in whole or in part;

"(11) Within which any substance has been substituted, in whole or in part;

"(12) Whose damage or inferiority has been concealed in any manner;

"(13) To which any substance has been added, mixed or packed to increase the food's bulk or weight, reduce the food's quality or strength, or make the food appear better or of greater value;

"(14) That is, bears, or contains a color additive that is unsafe within the meaning of section 721 of the Federal Food Act (21 U. S.C. 379(e)(a)).

"(15) That is a confectionery:

"(A) Within which any nonnutritive object is partially or completely imbedded, except that the confectionery shall not be adulterated for purposes of this act if the Mayor determines, by rule, that the nonnutritive object that is partially or completely imbedded in the confectionery has a practical, functional value to the confectionery that does not render the confectionery injurious or hazardous to health;

"(B) That bears or contains more than one-half of one percent (0.5%) of alcohol by volume, which is derived solely from flavoring extracts, except that the confectionery shall not be adulterated for purposes of this chapter if the confectionery is introduced, delivered for introduction, received, or held for sale;

"(C) That bears or contains any nonnutritive substance, except that the confectionery shall not be adulterated for purposes of this act if the nonnutritive substance is a safe substance that is in or on a confectionery product because the nonnutritive substance serves a practical, functional purpose in the manufacture, packaging, or storage of the confectionery product and use of the nonnutritive substance does not promote deception of the consumer or violate any other provision of this title;

"(16) That is oleomargarine, margarine, butter, or any of the raw material in oleomargarine, margarine, or butter, which contains or consists, in whole or in part, of any filthy, putrid, or decomposed substance, or if the oleomargarine, margarine, or butter is otherwise unfit for food; or

"(17) That is a dietary supplement or contains a dietary ingredient:

"(A) That presents a significant or unreasonable risk of illness or injury under conditions of use recommended or suggested in labeling or, if no conditions of use are suggested or recommended in the labeling, under ordinary conditions of use;

"(B) That is a new dietary ingredient for which there is inadequate information to provide reasonable assurance that the ingredient does not present a significant or unreasonable risk of illness or injury;

"(C) That is or contains a dietary ingredient that renders the food adulterated under paragraph (1) of this subsection under the conditions of use recommended or suggested in the labeling of the dietary supplement; or

"(D) That has been prepared, packed, or held under conditions that do not comply with current, good manufacturing practice rules, including rules that require expiration date labeling.".

(c) Section 4 (D.C. Code § 33-104) is amended to read as follows:

"(a) It shall be the duty of the Mayor to adopt such measures as may be necessary to facilitate the enforcement of this act with regard to the proper method of collecting and examining drugs and articles of food in the District of Columbia."

"(b) The Mayor of the District of Columbia is authorized to adopt the United States Food and Drug Administration's Model Food Code with any necessary amendments thereto:

(1) Control and regulate the retail sale, commercial and institutional service, and vending of food; training; protection;

(2) Establish standards for employee food safety practices and

(3) Regulate food sources, preparation, holding temperatures, and

(4) Regulate equipment, utensils and linens, their design, construction, numbers and capacities, location and installation, maintenance and operation, cleaning, and sanitization;

(5) Regulate the use of water and the treatment of liquid and solid wastes;

(6) Regulate facilities construction and maintenance, storage and use of poisonous and toxic materials;

(7) Establish license requirements for the operation of food;

(8) Restrict or exclude employees;

(9) Examine embargo and condemn food or food products, equipment, utensils and linens to protect the public health.".

(d) Section 5 (D.C. Code § 33-105) is amended by striking the phrase "Director of Public Health" and inserting the word "Mayor" in its place.

(e) Section 6 (D.C. Code § 33-106) is amended as follows:

(1) By striking the phrase "Department of Human Services" and inserting the phrase "Mayor," in its place;

(2) By striking the phrase ", who shall apply to him for the purpose and shall tender him the value of the same,"; and

(3) By adding the phrase "The Mayor may collect, without cost, and examine samples of food sufficient to analyze in order to determine compliance with this act." at the end of the section.

(f) Section 8 (D.C. Code § 33-108) is amended by striking the phrase "Health Department" and inserting the phrase "Department of Health" in its place.

(g) A new "Section 8A Administrative Remedies for Enforcement" is added to read as follows:

"Section 8A. Administrative Remedies for Enforcement.

"(a) The Mayor may take action to enforce this act or any rule promulgated pursuant to this act, if any person:

"(1) Operates a food establishment without a valid license;

"(2) Violates any term or condition of a food establishment license;

"(3) Does not correct serious violations of this act or rules promulgated pursuant to this act within timeframes established by the Mayor or repeatedly violates this act or its rules;

"(4) Does not comply with an order of the Mayor concerning an employee suspected of having a disease that can be transmitted by an infected person;

"(5) Does not comply with an embargo or condemnation order issued by the Mayor;

"(6) Does not comply with an order issued as a result of an administrative hearing under this act;

"(7) Does not comply with a summary suspension order by the Mayor.

"(b) The Mayor may grant a variance from food establishment license requirements if the applicant or licensee shows that compliance with the requirements of this act, or the rules promulgated pursuant to this act or the Food Regulation Act of 2001, would result in an unreasonable financial hardship, and that the public health and welfare would not be endangered.

"(c) The Mayor may suspend or revoke a license issued to a food establishment, for violation of this act or rules implementing this act and may summarily suspend or restrict the license if the Mayor determines through inspection, or examination of employees, food, records, or other means as specified in this act or rules, that an imminent health hazard exists. Summary suspension may be carried out by providing written notice to the licensee or person in charge, without prior warning, notice of a hearing, or hearing. If the Mayor restricts the activities of an employee of the food establishment, notice shall be given to that employee who shall have a right to a hearing after the restriction is implemented.

"(d)(1) The Mayor may, without prior notice, embargo and forbid the sale of, or cause to be destroyed, any food that 

"(A) May be unsafe, adulterated, or not honestly presented;

"(B) Is not prepared, processed, handled, packaged, transported, or stored in compliance with the Food Regulation Act of 2001 or the rules promulgated pursuant to that act;

"(C) Originated from an unapproved source;

"(D) Is not labeled according to law or properly tagged;

"(E) Is otherwise not in compliance with this act.

"(2) The Mayor shall provide the licensee or person in charge of the food establishment with a written notice at the same time the embargo action is taken, stating the action that is being taken, the basis for the action, and the right of the licensee or person in charge to request a hearing.

"(e) The Mayor may, without prior notice, condemn and cause to be removed any equipment, utensils or linens found in a food establishment, the use of which does not comply with this act or rules implementing this act, or that is being used in violation of this act or rules implementing this act, or that is unfit for use because of dirt, filth, extraneous matter, insects, corrosion, open seams, or chipped or cracked surfaces. The Mayor shall provide the licensee or person in charge of the food establishment with a written notice at the same time the condemnation action is taken, stating the action that is being taken, the basis for the action, and the right of the licensee or person in charge to request a hearing.

"(f) The Mayor may suspend a license issued in accordance with D.C. Code §§47-2801 and 47-2827 if the licensee is in violation of this act, or of the rules promulgated pursuant to this act. Written notice of the suspension shall be served upon the affected party or the party's designated agent. The Mayor shall provide the affected party or the party's designated agent with a written notice stating the action that is being taken, the basis for the action, and the right of the affected party or party's designated agent to request a hearing.

"(g) If a licensee has previously violated this act, or the rules promulgated pursuant to this act, or if the person's license has been previously suspended, the Mayor may revoke the license upon the commission of another violation. The Mayor shall provide the affected party, or the party's designated agent, with written notice of the intent to revoke the license and with an opportunity for a hearing prior to revocation. A person whose license has been revoked pursuant to this section may reapply for a food establishment license. The Mayor may grant a new license if the person is able to demonstrate an ability and willingness to comply with the license and with the provisions of this act and the rules implementing this act.

"(h) A licensee, person in charge or employee shall have the right to request a hearing within fifteen (15) days after service of the notice of an adverse action under this section. A request for a hearing shall not stay a summary suspension, an embargo or a condemnation order. The Mayor shall hold a hearing within seventy-two (72) hours a timely request for a hearing following a summary suspension, an embargo or a condemnation order, and shall issue a decision within seventy-two (72) hours after the hearing.

"(i) Each hearing shall be held in accordance with the contested case provisions of section 10 of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (D.C. Code § 1 -1509) and judicial review shall be in accordance with section 11 of that act (D.C. Code § 1-1510).

"(j) The Mayor shall be authorized to conduct necessary examinations and tests to determine whether any food employee has a disease in a communicable form, or is a carrier of a communicable disease. A food employee shall submit to examinations and tests, including providing access to medical history, at the request of the Mayor when there is reason to believe that the employee has a disease in a communicable form, or is a carrier of a communicable disease.

"(k) For the purpose of enforcing this act or any rule issued pursuant to this act, the Mayor may, at any reasonable time, upon the presentation of proper credentials to the owner, operator, or agent in charge, enter into or upon any food establishment for the purpose of making inspections and tests.

"(l) The Mayor may request that the Corporation Counsel commence an appropriate civil action in the Superior Court of the District of Columbia to secure a temporary restraining order, a preliminary injunction, a permanent injunction, or other appropriate relief from the court, to enforce this act or rules issued pursuant to this act.".

(h) Section 9 (D.C. Code § 33-109) is amended to read as follows:

"(a) Whenever the Mayor has reason to believe that there has been a violation of this act or the rules promulgated pursuant to this act, the Mayor shall give written notice of the alleged violation to the licensee, person in charge or employee. The notice shall state the nature of the violation and shall allow a reasonable time for the performance of the necessary corrective measures. Failure to comply shall result in penalties as set out in subsection (b).

"(b) Any person who violates this act, or rules promulgated pursuant to this act, shall be liable for a civil penalty in an amount not to exceed $10,000 for each violation. For any violation, each day of the violation shall constitute a separate offense and the penalties prescribed shall apply separately to each offense.

"(c) Any person who knowingly violates this act or the rules promulgated pursuant to this act shall be punished by a fine not to exceed $10,000, or imprisonment not to exceed one (1) year, or both. For any violation, each day of the violation shall constitute a separate offense and the penalties prescribed shall apply separately to each offense. Prosecutions for violations of this subsection shall be brought in the Superior Court of the District of Columbia by the Corporation Counsel for the District of Columbia.

"(d) Civil fines, penalties, and fees may be imposed as alternative sanctions for any infraction of the provisions of this act, or any rules issued under the authority of that act, pursuant to subchapters I through III of Chapter 27 of Title 6.

"(e) Any person who contests a final order of the Mayor issued pursuant to the Food Regulation Act of 2001, after exhaustion of all administrative remedies, is entitled to judicial review of the final order upon filing a written petition for review in the District of Columbia Court of Appeals."

(i) Section 10 (D.C. Code § 33-110) is amended to read as follows:

"(a) The Mayor, shall issue rules in accordance with Title 1 of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Code § 1-1 501 et set.) to implement the provisions of this act. The Mayor may amend this act by promulgation of a rule in accordance with this section.

"(b) These rules may:

"(1) Prescribe manufacturing practices for dietary supplements, which shall be modeled after current, good manufacturing practice rules for food and which shall not impose standards for which there is no current, generally available analytical methodology;

"(2) Include procedures for declaring that a dietary supplement or dietary ingredient poses an imminent hazard to public health or safety; and

"(3) Prohibit the use of a particular nonnutritive substance.

"(c) The Mayor shall establish by rule, a license application fee for a food establishment. The fee shall be set in an amount to recoup some or all of the costs to the District of Columbia for reviewing the application. The regulations may also provide for interest to be charged on late payments of any charges imposed pursuant to this act.". 

Sec. 3. Section 2 of the Good Faith Donor and Donee Act of 1981, effective October 8, 1981, (D. C. Law 4-39; D. C. § 33-801) is amended as follows:

(1) By striking the phrase "§ 8-6:102 of Title 8 of the District of Columbia Health Regulations (published as Title 8 of the District of Columbia Regulations; 1962 Revision, as amended) ("Health Regulations")" and inserting the phrase "Food Regulation Act of 2001 or rules issued pursuant to that act" in its place; and

(2) By striking the phrase "§ 8-6:102 of Title 8 of the Health Regulations" and inserting the phrase "Food Regulation Act of 2001 or rules issued pursuant to that act" in its place.

Sec. 4. Section 28 of An Act To establish standard weights and measures for the District of Columbia; to define the duties of the Superintendent of Weights, Measures and Markets of the District of Columbia; and for other purposes, approved March 3, 1921 (41 Stat. 1224; D.C. Code § 10-132), is amended by striking the word "Council" wherever it appears and inserting the word "Mayor" in its place.

Sec. 5. An Act Authorizing the Commissioners of the District of Columbia to make regulations respecting the rights and privileges of the fish wharf, approved March 19, 1906 (34 Stat. 72; D.C. Code § 10-137), is amended by striking the phrase "the Council of the District of Columbia " wherever it appears and inserting the phrase "said Mayor" in its place;

Sec. 6. An Act Making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June thirtieth, eighteen hundred and ninety-six, and for other purposes, approved March 2, 1895 (28 Stat. 758; D.C, Code § 6-501), is amended by striking the phrase "Council of the District of Columbia" and inserting the word "Mayor" in its place;

Sec. 7. Section 513 of Title 24 of the District of Columbia Regulations No. 7439, 21 DCR 1285 (December 23, 1974) is amended to read as follows:

"513.1 All preparation, storage, handling, transportation, and storage of food vended under the provisions of this chapter shall be in compliance with the Food Regulation Act of 2001 and the regulations issued pursuant to that act.".

Sec. 8. Repealers.

(a) An Act To prevent the adulteration of candy in the District of Columbia, approved May 5, 1898 (30 Stat. 398; D.C. Code §§ 33-201 - 33-203), is repealed.

(b) An Act To regulate within the District of Columbia the sale of milk, cream, and ice cream, and for other purposes, approved February 27, 1925 (43 Stat. 1004; D.C. Code §§ 33-301 - 33-312) is repealed.

(c) An Act Relating to the sale of horse meat or food products thereof in the District of Columbia, approved July 3, 1943 (57 Stat. 372; D.C. Code §§ 33-401 - 33403) is repealed.

(d) An Act To prevent the sale of unwholesome food in the District of Columbia, approved December 16, 1941 (55 Stat. 807; D.C. Code §§ 22-3416 - 22-3422), is repealed.

(e) Title 8-6:108 of the Health Regulations, effective August 22, 1967, are repealed upon the effective date of publication in the District of Columbia Resister of the notice of final rulemaking for the regulations authorized by this act.

Sec. 9 Fiscal Impact Statement.

The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 602(c)(3) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Code § 1-233(c)(3)).

Sec. 10 Effective Date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), approval by the Financial Responsibility and Management Assistance Authority, as provided in section 203(a) of the District of Columbia Financial Responsibility and Management Assistance Authority Act of 1995, approved April 17, 1995 (109 Stat. 116; D.C. Code §47-392.3(a)), a 60-day period of Congressional review, as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Code § 1233(c)(1)), and publication in the District of Columbia Register.

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