Related Statutes and Rules
Since the merger with DHS’s Food Safety and Recreational Licensing section in July of 2016, the Department regulates food from farm to table. Once it leaves the farm, food is almost entirely the responsibility of DFRS, and it is regulated, pursuant to ch. 97, Stats., as well as various, inter-related administrative rules that often either mirror or reference federal law. Relevant administrative rules cover retail food establishments (ATCP 75 and its Appendix), food processing plants (ATCP 70), dairy plants and farms (ATCP 65), and food warehouses (ATCP 71), as well as meat and poultry inspection and processing (ATCP 55). The Department also references and mirrors much of the 2013 FDA Model Food Code, as well as FDA Model Food Code updates accepted by the FDA since 2013. Plain Language Analysis
The Department is updating ch. ATCP 75 by incorporating large parts of repealed ch. DHS 196 (Restaurants) and repealing rules in ch. ATCP 75 dealing with agent programs. These agent program rules are now found in the new ch. ATCP 74 (Local Agents and Regulation), which also incorporates rules from the repealed ch. DHS 193.
With the merger, changes must be made to merge the different rules used by the two agencies. In addition to new language clarifying the responsibilities of food retailers who take advantage of the exemption from the requirement to hold a food processing plant license under ch. ATCP 70 but wholesale up to 25% of their gross food sales, the proposed ch. ATCP 75 will incorporate, for the first time, specific definitions for “wholesaling” and “retailing” which are now being incorporated into chs. ATCP 70 and ATCP 55 to provide guidance, clarity, and uniformity for food processors and retailers in Wisconsin. As previously stated, the proposed ATCP 75 contains language that specifically clarifies the responsibilities for retail food establishments exempt from the requirement to hold a food processing plant license but also doing a limited amount of wholesaling, and to follow the ATCP 70 safety, processing, and labeling requirements for the food produced for wholesaling. This not only ensures that all persons doing similar business activities are similarly regulated, but also ensures that all businesses selling at remote locations have the enhanced food safety processes in place, such as a written recall plan and a written food safety production plan as required by rules in ch. ATCP 70. A major change in this rule is the elimination of the exemption from the requirement to hold a retail food establishment license for persons holding either a meat establishment license issued by the Department or a grant of meat / poultry inspection from the federal government. Prior to the adoption of this rule, those meat establishments were allowed to retail up to 25% of total meat sales without a retail license because of the pervasive state or federal inspection of meat processing. However, recent discussions between the regulators in food and meat inspection have made it clear that meat and poultry products, sold at retail but not imbued with the state or federal mark of inspection, and other aspects of a retail food establishment, were not being inspected by meat inspection staff. The result of this oversight means that those establishments with meat establishment licenses or federal grants of inspection would not be able to retail any product other than meat or poultry products bearing the legend. With the proposed rule, the department would make it possible for them to continue to sell a full line of products while assuring the consuming public that the food products were subject to a proper inspection. It also levels the playing field for businesses already licensed to produce meat and poultry products only for retail sale.
The Department worked to combine the duties, activities, and expectations of both the merged agencies in a way that eliminates duplication, clarifies expectations, and, to the extent possible, ensures that multiple licenses are not needed. The Department has, however, balanced these objectives with its responsibility to the public and its mission as food safety regulators to ensure that all food is produced according to law and under some form of inspection. For some situations, such as meat establishments that produce some products under state or federal inspection with a mark of inspection and some product without that inspection or mark, the proposed rule will allow an additional retail license from the state or local agency with jurisdiction in that area, as well as the state meat establishment license or federal grant of inspection.
The new rule focuses on defining and clarifying the rules for micro-markets, vending machines, and the commissaries that serve both of those business types. The commissaries for both micro-markets and vending machines are now to be licensed as food processing plants, which reflects the operations of these commissaries. In addition, micro-markets are defined with the recognition that they operate without a person in charge at all times in overseeing their operations, which is a requirement for other types of retail food establishments.
Greater clarification is also given to the Department‘s rules for Hazard Analysis Critical Control Point (“HACCP”) Plans and HAACP variances, including the procedure for variance applications. New language also simplifies the protocols that establishments must follow for doing vacuum packing and sous-vide processing.
A significant change in the Wisconsin Food Code deals with cheese curds. The Department proposes to include language that references a process authority study on cheese curds, which validates the 24-hour at-room temperature rule and, moreover, allows the Department to meet Standard 1 of the FDA’s Retail Food Regulatory Standards Program.
This proposed rule harmonizes the different licensing rules used by DHS and the Department for mobile retail food establishment bases. The application of the different sets of rules created a licensing inequity between those operations, depending on the overseeing agency. These inconsistencies have now been eliminated, and the proposed rule also clarifies the rules for using those bases.
The Department renumbered and consolidated many provisions in the Wisconsin Food Code to achieve greater ease in use and to allow for the incorporation of rules on micro-markets and vending machines. The Department has also revisited the criteria for licensing fees, changing from income-and-sales-volume-based fees to risk-complexity-based fees.
Other clarifications, changes, and additions include the following:
• Language and terminology are standardized and clarified between the two merged programs.
• The definitions section is expanded to facilitate understanding of the merged language and the new programs.
• The Wisconsin Food Code is rearranged to help clarify its contents and applications. It is also expanded to stay current with recent federal and state initiatives.
Federal and Surrounding State Programs
Federal Programs
The FDA does not directly regulate retail food safety, and thus does not have a retail inspection or regulation program. The FDA promulgates the Model Food Code which is presented as a guide that is generally used in formulating state regulations or directly adopted by state programs.
Surrounding State Programs
Surrounding states have adopted various versions of the FDA Model Food Code. Retail food establishments in Illinois are licensed at the county or municipal level. Cook County does not have a separate category for mobile retail food establishment bases. Licensing fees for retail food establishments are based on whether the establishment has seats for customers and if not, the total area occupied by the business. Chicago differentiates licenses for mobile food dispensers and mobile food preparers. Minnesota has different license categories for mobile and stationary retail food businesses, with the fee based on sales volume. There is no separate Minnesota license category for mobile retail food establishment bases. Retail food establishments (not restaurants) in Minnesota are primarily regulated by the Department of Agriculture. Minnesota restaurants are primarily regulated by county or municipal agencies. Hennepin County, for example, sets license fees based on menu breadth, degree of hazard of menu items, and size of operation, with separate categories for mobile and itinerant businesses. Iowa has a separate license category for a commissary serving a mobile retail food establishment. The retail food establishment category in Iowa includes restaurants. Michigan includes restaurants as a type of retail food establishment and has separate categories for mobile and mobile commissary operations. This rule is thus consistent with rules in some neighboring states.
Data and Analytical Methodologies
The Department reviewed the changes in the FDA Model Food Code as well as changes that will be coming in the new FDA Model Food Code that are based on changes adopted in recent FDA meetings. The Department has also reviewed Wisconsin statutes and rules for food processing plants, meat and poultry inspection, and dairy plants, as well as current industrial practices, to identify areas where greater consistency can be achieved and eliminate discrepancies between the two food inspection programs existing prior to July of 2016. Feedback on the rule was solicited from members of the Food Safety Advisory Council (FSAC), a group comprised of business and local health department agent representatives. The proposed changes in criteria for license fees were tested by applying the criteria to businesses familiar to FSAC members and by evaluating the license fee change to each retail food establishment in a representative county.
Effect on Small Business
The rule should not have a major economic effect on retail food establishments since it mainly replaces and updates current rules.
For those retail food establishments requiring a licensed base, already-licensed mobile restaurants will see no change in requirements because their bases were licensed under the DHS rules that were transferred to the department. Mobile retail food establishments that operate at special events or at temporary events will not need this license, just as mobile restaurants operating at temporary events (such as farmers’ markets) currently do not need the licensure.
For those operators with a base serving mobile retail food establishments that only sell non-perishable packaged foods, the effect will also be minimal. The only operators who may face increased regulatory requirements, and the associated expenses to meet them, are those operators who are also doing complex processing and preparation of potentially hazardous food. Some activities performed in those settings must also be done under the HACCP system, such as fish processing that would require implementation of a Seafood HACCP system (as required in 21 CFR part 123, as cited in s. ATCP 70.18), juice processing that would require implementation of a Juice HACCP system (as required in 21 CFR part 120, as cited in s. ATCP 70.23), or the processing and/or repacking of marine shellfish that would require compliance with the HAACP-based Marine Shellfish Program found in s. ATCP 70.21. The major change in ch. ATCP 75 is the change in the criteria for assigning license fees. The rule more realistically ties the cost of the license to the complexity and food safety hazards of the processing activities going on and not to the size of the establishment and dollar volume of sales. In many cases, larger establishments that may have been paying a higher license fee because of the sales volume will now pay a lower fee if their processing is not complex or hazardous. The Department’s analyses suggest that the overall change in total license fees charged will be negligible. The proposed licensing fee criteria more fairly reflects the time and personnel costs to the Department for the inspection. The additional retail license should not pose a major fiscal impact on plants operating under state or federal meat inspection programs. Both meat inspection programs require all inspected products to be produced under HACCP. The retail program will be willing to accept state or federal HACCP plans for cured or shelf-stable products, and already requires them under the retail program. If the proposed rule is not approved, it may not be possible for establishments operating under USDA or Wisconsin meat inspection programs to continue to operate unlicensed, uninspected retail outlets.
Standards Incorporated by Reference
Substantial sections of the 2013 FDA Model Food Code were incorporated where they did not conflict with our compliance and enforcement programs.
DATCP Contact
Questions and comments (including hearing comments) related to this rule may be directed to:
Peter Haase, Director
Bureau of Food Safety and Inspection
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4711
Rule comments will be accepted up to two weeks after the last public hearing is held on this rule. Hearing dates will be scheduled throughout the state after this rule is approved by the Board of Agriculture, Trade and Consumer Protection.
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Section 1. ATCP 75 is repealed and recreated to read:
RETAIL FOOD ESTABLISHMENTS
Subchapter I – Definitions and General Requirements
ATCP 75.01 Authority and purpose.
