Trade Groups Criticize FDA's Proposed Food Transport Rules for Logistics Providers
Logistics industry associations continued to criticize a definition in the Food and Drug Administration’s proposed food transport regulations that they say could subject logistics providers to onerous requirements even though they are not in a position to comply. Under the agency’s February proposed rule on sanitary transportation of food (see 14020301), the "shipper" responsible for setting food safety procedures for a given shipment would be defined as the “person who initiates a shipment of food by motor vehicle or rail vehicle.” In recently submitted comments on the proposed rule, the American Trucking Associations (ATA) and the International Warehouse Logistics Association (IWLA) say that definition would make logistics providers responsible for providing information they are in no position to know, like packaging and temperature requirements.
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The comments from both the ATA and IWLA echoed the position that the National Customs Brokers & Forwarders Association of America took in comments submitted to FDA in May (see 14052725). All three groups say FDA’s proposed definition of “shipper” could include logistics providers that solely arrange for the interstate transportation of a shipment based on the instructions of the owner of the product, and never hold title. The NCBFAA said the definition could include customs brokers in some circumstances.
The crux of the issue is what it means to initiate a shipment, and whether that initiator is in a position to know how to keep the food safe on its journey, said the IWLA. For example, a third-party logistics provider may even be listed as the shipper on the bill of lading, but its customer is the party with knowledge of the food and associated temperature control requirements. “In our view, the proposed definition may place responsibility on the wrong person,” said the IWLU. “We think the definition of a ‘shipper’ should be clearly defined as a person with ownership of the food product. Although the ‘owner’ will change at various points in the supply chain, the owner will always be a single definable party with knowledge of the food product,” it said. “That is the person who should be deemed the ‘shipper’ with responsibility for the safe transportation of the food product.”
The ATA agreed. “The proposed definition fails to fully capture FDA’s stated (and correct) intention, which was to place responsibility on the party who knows the most about, and is best situated to control, the product being shipped.” Placing the onus on the logistics provider to know food safety requirements associated with a given shipment would be “unduly burdensome and inappropriately hinder commerce,” especially given the broad range of industries serviced by logistics providers, said the ATA. “We respectfully request that FDA revise the definition of “shipper” to clarify that the originating entities dispatching product into transportation are directly and solely responsible ‘shippers’ for purposes of the final rule,” it said.
Some Commenters Oppose Exception for Small Businesses
FDA’s proposed rule would exempt from its requirements “non-covered businesses,” which it defines as a shipper, receiver or carrier with less than $500,000 in annual sales. That exception would be difficult to enforce, said the Association of Food and Drug Officials (AFDO) in comments submitted to the agency. For example, inspections to verify compliance with sanitary transportation requirements would most likely occur while a truck is on the highway. That could in effect require drivers employed by small businesses to carry documentation of their employers’ revenue, said the AFDO. Instead, FDA should require small businesses to comply but give them a three-year grace period, it said.
The ATA was more muted in its concern, but nonetheless opined that an exception for small businesses might leave a gap in some of the riskiest types of transportation. “ATA believes that this exemption needs to be further examined. In the preamble, references to those most likely to be found with adulterated food were the smaller box trucks and those making daily deliveries. ATA wants to ensure that the final rule addresses those who have the greatest risk of causing food borne related illness, and not exempt them from the rule that would minimize that risk,” it said. The exemption could hurt smaller concerns, said the ATA. For example, a shipper that brokers loads to smaller carriers would be less likely to use them if they are perceived to be less safe, it said. “These two points show how the exemption may be harmful to not only the safety of the food, but also to the smaller carriers,” it said.