HB-5679, As Passed Senate, December 10, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 5679

A bill to amend 2000 PA 92, entitled

"Food law of 2000,"

by amending sections 1105 and 1107 (MCL 289.1105 and 289.1107), as

amended by 2007 PA 113.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1105. 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 except that, if the

substance is not an added substance, the food is not considered

adulterated if 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

subparagraph (v).

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

a pesticide chemical considered unsafe within the meaning of

subparagraph (v).

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

within the meaning of subparagraph (v) provided that where a

pesticide chemical has been used in or on a raw agricultural

commodity in conformity with an exemption granted or tolerance

prescribed under subparagraph (v) 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 subparagraph (v) and this subdivision, not be

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) Any added poisonous or deleterious substance, any food

additive, and pesticide chemical in or on a raw agricultural

commodity, or any color additive is considered unsafe for the

purpose of application of this definition, unless there is in

effect a federal regulation or exemption from regulation under the

federal act, meat inspection act, poultry product inspection act,

or other federal acts, or a rule adopted under this act 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 rule.

(vi) 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.

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

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

otherwise unfit for food.

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

insanitary conditions in which it may have become contaminated with

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

or injurious to health.

(ix) 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.

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

poisonous or deleterious substance that may render the contents

injurious to health.

(xi) 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.

(xii) It is confectionery and has partially or completely

imbedded in it any nonnutritive object except in the case of any

nonnutritive object 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 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 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 to any chewing gum by reason of its containing

harmless nonnutritive masticatory substances which is in or on

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 the provisions 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.

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

unsafe within the meaning of subparagraph (v).

(xiv) 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.

(xv) 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 processing plant 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) ~~(c)~~ "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(n)(ii), at no extra cost to its transient

tenants. A bed and breakfast is not considered a food service

establishment if exempt under section 1107(n)(ii) or (iii).

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

substance made by process of synthesis or similar artifice or

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

substance 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) ~~(e)~~ "Contaminated with filth" means contamination

applicable to any food not securely protected from dust, dirt, and,

as far as may be necessary by all reasonable means, from all

foreign or injurious contaminations.

(g) ~~(f)~~ "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.

(h) ~~(g)~~ "Critical violation" or "critical item" means a

violation of the food code that the director determines is more

likely than other violations to contribute to food contamination,

illness to humans, or environmental health hazard.

Sec. 1107. As used in this act:

(a) "Department" means the Michigan department of agriculture.

(b) "Director" means the director of the Michigan department

of agriculture or his or her designee.

food safety and sanitation assessment, whether announced or

unannounced, that identifies violations or verifies compliance with

this act and determines the degree of active control by food

establishment operators over foodborne illness risk factors.

(d) "Extended retail food establishment" means a retail

grocery that does both of the following:

(i) Serves or provides an unpackaged food for immediate

consumption.

(ii) Provides customer seating in the food service area.

(e) "Fair concession" means a food concession, storage,

preparation, or dispensing operation at a state or county fair.

(f) "Federal act" means the federal food, drug, and cosmetic

act, 21 USC 301 to 397.

(g) "Food" means articles used for food or drink for humans or

other animals, chewing gum, and articles used for components of any

such article.

(h) "Food additive" means any substance, the intended use of

which, directly or indirectly, results in or may be reasonably

expected to result in its becoming a component or otherwise

affecting the characteristics of any food if that substance is not

generally recognized among experts as having been adequately shown

through scientific procedures to be safe under the conditions of

its intended use. Food additive includes any substance intended for

use in producing, manufacturing, packing, processing, preparing,

treating, packaging, transporting, or holding food and includes any

source of radiation intended for any use. Food additive does not

include any of the following:

(i) A pesticide chemical in or on a raw agricultural commodity.

(ii) A pesticide chemical to the extent that it is intended for

use or is used in the production, storage, or transportation of any

raw agricultural commodity.

(iii) A color additive.

(iv) Any substance used in accordance with a sanction or

approval granted before the enactment of the food additives

amendment of 1958, Public Law 85-929, pursuant to the federal act,

the poultry products inspection act, 21 USC 451 to 471, or the meat

inspection act of March 4, 1907, chapter 2907, 34 Stat. 1258.

(i) "Food code" means food code, 2005 recommendations of the

food and drug administration of the United States public health

service that regulates the design, construction, management, and

operation of certain food establishments.

(j) "Food establishment" means an operation where food is

processed, packed, canned, preserved, frozen, fabricated, stored,

prepared, served, sold, or offered for sale. Food establishment

includes a food processing plant, a food service establishment, and

a retail grocery. Food establishment does not include any of the

following:

(i) A charitable, religious, fraternal, or other nonprofit

organization operating a home-prepared baked goods sale or serving

only home-prepared food in connection with its meetings or as part

of a fund-raising event.

(ii) An inpatient food operation located in a health facility

or agency subject to licensure under article 17 of the public

health code, MCL 333.20101 to 333.22260.

(iii) A food operation located in a prison, jail, state mental

health institute, boarding house, fraternity or sorority house,

convent, or other facility where the facility is the primary

residence for the occupants and the food operation is limited to

serving meals to the occupants as part of their living arrangement.

(k) "Food processing plant" means a food establishment that

processes, manufactures, packages, labels, or stores food and does

not provide food directly to a consumer. Food processing plant does

not include a maple syrup producer.

(l) "Food safety and sanitation assessment" means judging or

assessing specific food handling activities, events, conditions, or

management systems in an effort to determine their potential

effectiveness in controlling risks for foodborne illness and

required compliance with this act, accompanied by a report of

findings.

(m) "Food safety audit" means the methodical examination and

review of records, food sources, food handling procedures, and

facility cleaning and sanitation practices for compliance with this

act, accompanied by a report of findings. Food safety audit

includes checking or testing, or both, of observable practices and

procedures to determine compliance with standards contained in or

adopted by this act, accompanied by a report of findings.

(n) "Food service establishment" means a fixed or mobile

restaurant, coffee shop, cafeteria, short order cafe, luncheonette,

grill, tearoom, sandwich shop, soda fountain, tavern, bar, cocktail

lounge, nightclub, drive-in, industrial feeding establishment,

private organization serving the public, rental hall, catering

kitchen, delicatessen, theater, commissary, food concession, or

similar place in which food or drink is prepared for direct

consumption through service on the premises or elsewhere, and any

other eating or drinking establishment or operation where food is

served or provided for the public. Food service establishment does

not include any of the following:

(i) A motel that serves continental breakfasts only.

(ii) A bed and breakfast that has 10 or fewer sleeping rooms,

including sleeping rooms occupied by the innkeeper, 1 or more of

which are available for rent to transient tenants.

(iii) A bed and breakfast that has at least 11 but fewer than 15

rooms for rent, if the bed and breakfast serves continental

breakfasts only.

(iv) A child care organization regulated under 1973 PA 116, MCL

722.111 to 722.128, unless the establishment is carrying out an

operation considered by the director to be a food service

establishment.

(o) "Food warehouse" means a food establishment that stores or

distributes prepackaged food for wholesaling.