Throughout the country, most state health or agriculture departments have the authority to protect the public’s health by regulating food production operations and other food facilities. While that is true in Pennsylvania, there are a few caveats. The PA Department of Agriculture predominantly regulates food production and facilities in the state, with the exception of 6 counties: Allegheny, Bucks, Chester, Erie, Montgomery, and Philadelphia. In those 6 counties, the county health department has the delegated authority to regulate food production and facilities.
The PA Department of Agriculture does not regulate all counties in the state in part due to the type of public health system Pennsylvania has, which is a hybrid system. A hybrid system means there is a primary state Department of Health that oversees a portion of the public’s health, but there are many other agencies that also address public health issues. For example, the Departments of Agriculture, Human Services, Environmental Protection, Labor and Industry and Aging all address public health. Consequently, food production and facilities typically falls under the PA Department of Agriculture’s jurisdiction. The 6 county health departments with delegated authority are able to regulate the public’s health under the Local Health Administration Act of 1951, or Act 315, which is discussed further below. Moreover, the 6 counties with delegated authority also generally represent the most populated counties in the state of Pennsylvania, which means the local county health department has better capacity to oversee the area.
Some counties with delegated authority simply locally enforce the PA Food Code, while others, like Allegheny County have developed their own unique regulations. Under their authority, Allegheny County Health Department (ACHD) is able to regulate the public’s health as they wish so long as it is the same or more restrictive than the Department of Agriculture’s regulations. This ability then creates the existence of differing regulations between counties, specifically around food production and facilities. As such, this post discusses this delegation of authority and how it affects commercial food production regulations in Allegheny County.
What are the relevant statutes and regulations?
In the 1990s, the US Food and Drug Administration (FDA) developed a Model Food Code that most states have adopted, including Pennsylvania in 2013. A map of the states that have adopted the Model Food Code can be found here. The Model Food Code was codified by the Pennsylvania legislature and is found in Chapter 46 of Title 7 - Agriculture in the Pennsylvania Code, which can be found here.
The Pennsylvania Food Code gives the Department of Agriculture authority to regulate food production, as well as other food facilities. The following facilities and operations fall within the purview of the PA Department of Agriculture:
- Retail food facilities
- Farmers markers
- Mobile food facilities, fairs, and temporary events
- Frozen desserts, including soft serve ice cream, water ice, and frozen yogurt
- Food employee certification
- Specialized processes and HACCP, including juice packaging, the curing, smoking, and drying of fishes and meats, and fermentation
Additionally, the Retail Food Facility Act and Food Safety Act also governs food production and facilities.
As mentioned above, there are 6 counties in Pennsylvania that have county health departments that oversee the regulation of food production and facilities. This is possible through Act 315, which is the Local Health Administration Law. Section 12005 of the Act specifically authorizes the development of county health departments and the manner in which a county can do so. Through this Act, Allegheny County established its own health department.
Through the authority granted by Act 315, ACHD enacted Article III rules and regulations in 2000 governing food production and facilities in the county. The following facilities and operations fall within the purview of ACHD:
- Food establishments
- Mobile food units
- Temporary or seasonal food stands
- Overall safety measures
- Certification of food employees
There are also federal statutes governing food production and facilities, including the Food Safety Modernization Act, FDA manufacturing and labeling requirements, and more. Federal statutes and regulations should be consulted in addition to State laws and regulations, especially for any packaged food that will be crossing state lines.
Pennsylvania Commercial Food Production
So if you are not in one of the 6 counties with delegated authority, you fall under the PA Department of Agriculture and the PA Food Code. The PA Department of Agriculture has both standard commercial food establishment regulations and a commercial limited food establishment program, which allows some “‘limited’ types of food processing to occur in a ‘residential style kitchen.’” The standard commercial food establishment requirements mean constructing and meeting the requirements of a full commercial kitchen that is compliant with all applicable federal and state standards. The limited food establishment program allows food processors to produce certain foods in a non-commercial kitchen, or a residential style kitchen, and still sell products to the public. However, the kitchen still needs to be inspected. This program is common throughout the US and is often called a cottage food law.
The program limits the types of food a processor is able to produce, hence the name of the program, but there is still a wide-range of products that fall within the program. Producers under the limited food processing regulations cannot produce foods that are time and temperature controlled for safety (potentially hazardous foods). As a general rule of thumb, foods that do not require refrigeration are permissible products under the PA limited food establishment program. Foods that include ingredients like meat and dairy would not be able to be produced under the limited food establishment program.
Products that can be produced under the limited food establishment program include:
- Baked goods: breads, cookies, and muffins
- Certain beverages: root beer, lemonade, and some kombucha
- Certain canned foods that are naturally acidic or acidified foods: apples, peaches, lemons, pickled vegetables, and salsa
- Jams and jellies
You should work with an attorney or the state to determine if your product falls under the standard commercial kitchen requirements or the limited food establishment program.
A Local Look: Allegheny County Commercial Food Production
At the local level, ACHD does not have the limited food establishment program. This deviates from the state level statutes and regulations, meaning individuals in Allegheny County are subject to the rules and regulations of ACHD and are therefore not afforded the opportunity to choose from the options provided by the state.
A good portion of ACHD Article III speaks to the kitchen requirements for all food establishments in the county. For example, Section 309.1 of Article III states “all equipment and utensils must conform to National Sanitation Foundation (NSF) Standards or other equivalent standards in food industries where NSF Standards do not apply.” NSF Standards are on record at ACHD, but in summation, NSF Standards speak to food equipment, including design, construction and performance, and commercial refrigerators and freezers. Overall, the standards generally require all food preparation equipment and the facility itself to be commercial-grade, which often means stainless steel countertops, commercial hood, etc. Since ACHD follows the NSF Standards, all food production must take place in a commercial-grade facility whether the food contains refrigerated or “potentially hazardous” components or not.
Given the present ACHD regulations, individuals wanting to start a food business or want to only produce non-refrigerated or shelf-stable products are limited in their food production options. However, there are often organizations and businesses like churches and La Dorita that rent commercial kitchen space to small food business owners that may not have commercial-grade kitchen infrastructure. We hope this month’s post is informative for all the food processors and budding entrepreneurs out there. If you find you are having trouble navigating the food statutes and regulations, be sure to contact a lawyer for assistance.