Food Regulation Legislative Review Emergency Amendment Act of 2001
Bill 14-361

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A BILL IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

BE IT ENACTED BY THE COUNCIL CIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Food Regulation Legislative Review Emergency Amendment 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. 246; D.C. Official Code §48-101 et seq.), is amended as follows:

"For the purposes of this act, the term:

"(1) "Condemnation" means an administrative restriction or exclusion on the use of specific equipment, utensils, or linens.

"(2) "Drug" shall include all medicines for external or internal use, antiseptics, disinfectants, and cosmetics.

"(3) "Embargo" means an administrative restriction or exclusion on the distribution of food or food products.

"(4) "Food" means 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.

"(5) "Food establishment" means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption.

"(A) The term "food establishment" includes:

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

"(ii) 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;

"(iii) 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 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 (24 Stat. 368; D.C. Official Code §1-303.01), or the feeding locations are licensed by the Mayor; 

"(iv) 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;

"(v) All private clubs, employer-sponsored cafeterias or restaurants, schools, churches, residential treatment facilities, and similar facilities, with the exception of those described in subparagraphs (B)(v) through (B)(ix) of this paragraph; and

"(vi) 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. Official Code §7-2701);

"(B) The term "food establishment" shall not include:

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

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

"(iii) A food processing plant;

"(iv) 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 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;

"(v) An area where food that is prepared as specified in subparagraph (B)(iv) of this paragraph is sold or offered for human consumption;

"(vi) 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:

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

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

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

(b) Section 3 (D.C. Official Code 48-103) is amended as follows:

(1) Subsection (a) (D.C. Official Code § 48-103(1)) is amended by adding the following language at the end:

"provided, further, 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) Subsection (b) (D.C. Official Code §48-103(2)) is amended to read as follows:

"(b) In the case of food, if: 

"(1) It 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) It 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, Drug, and Cosmetic Act, approved June 25, 1938 (52 Stat. 1049; 21 U.S.C. §346);

"(3) It bears or contains a pesticide chemical residue that is unsafe within the meaning of section 408 of the Federal Food, Drug, and Cosmetic Act;

"(4) It bears, or contains any food additive that is unsafe within the meaning of section 409 of the Federal Food, Drug and Cosmetic Act, or a new animal drug (or conversion product thereof) that is unsafe within the meaning of section 512 of the Federal Food, Drug, and Cosmetic Act; 

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

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

"(8) It 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) It 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, Drug. and Cosmetic Act;

"(10) Any valuable constituent has been omitted or abstracted, in whole or in part:

"(11) Any substance has been substituted, in whole or in part;

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

"(13) 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) It is, bears, or contains a color additive that is unsafe within the meaning of section 721 of the Federal Food, Drug, and Cosmetic Act;

"(15) It 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 act 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 act:

"(16) It 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) It 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.",

"(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, to:

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

(2) Establish standards for employee food safety practices and training;

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

(4) Regulate equipment, utensils, and linens, their design, construction, number and capacity, 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 establishments; 

(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. Official Code §48-105) is amended by striking the phrase "Director of Public Health" and inserting the word "Mayor" in its place.

(e) Section 6 (D.C. Official Code § 48-106) is amended as follows:

(1) Strike the phrase "Department of Human Services" and insert the phrase "Mayor" in its place.

(2) Strike the phrase ", who shall apply to him for the purpose and shall tender him the value of the same,".

(3) Add at the end the following sentence: "The Mayor may collect, without cost, and examine samples of food sufficient to analyze in order to determine compliance with this act.".

(f) Section 8 (D.C. Official Code § 48-108) is amended by striking the phrase "Health Department" and inserting the phrase "Department of Health" in its place.

"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; or

"(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, 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 the provisions 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 implementing this act, that an imminent health hazard exists. The Mayor may summarily suspend a food establishment's license by providing written notice to the licensee or person in charge, without prior warning, to 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 requirements of this act, or the rules promulgated pursuant to this act;

"(C) Originated from an unapproved source;

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

"(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. Official Code §§47-2801 and 47-2827 if the licensee is in violation of this act, or of the rules promulgated pursuant to this act. The Mayor shall serve upon the affected party or the party's designated agent a written notice of suspension 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 to if the person is able to demonstrate an ability and willingness to comply with the license, 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 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 72 hours of a timely request for a hearing following a summary suspension, an embargo, or a condemnation order, and shall issue a decision within 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. Official Code § 2-509), and judicial review shall be in accordance with section 11 of that act (D.C. Official Code §2-510). 

"(j) The Mayor is 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. Official Code § 48-109) 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 forth in subsection (b) of this section.

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

"(c) Any person who knowingly violates any of the provisions of 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 year, or both. Each day of a 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 this act, pursuant to the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official Code §2-1801 et seq.).

"(e) Any person who contests a final order of the Mayor issued pursuant to this act, 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. Official Code § 48-110) 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. Official Code §2501 et seq.) to implement the provisions of this act. The Mayor may amend this act by promulgation of a rule in accordance with this section.

"(b) 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. Official Code § 48-301), is amended as follows:

(a) Strike 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 insert the phrase "An Act Relating to the adulteration of foods and drugs in the District of Columbia, approved February 17, 1898 (30 Stat. 246; D.C. Official Code 48-101 et seq.), 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. Official Code §37-201.28), 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. Official Code §37-205.01), is amended by striking the phrase "the Council of the District of Columbia " 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. Official Code §8-701), is amended by striking the phrase "Council of the District of Columbia" and inserting the word "Mayor" in its place.

Sec. 7. Section 513.1 of Title 24 of the District of Columbia Municipal Regulations 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 An Act Relating to the adulteration of foods and drugs in the District of Columbia, approved February 17, 1898 (30 Stat. 246; D.C. Official Code §48-101 et seq.), and the regulations issued pursuant to that act."

(a) An Act To prevent the adulteration of candy in the District of Columbia, approved May 5, 1898 (30 Stat. 398; D.C. Official Code §§48-201 - 48-203), 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. Official Code §§48-601 - 48-610), is repealed.

(c) An Act Making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June thirtieth, nineteen hundred and eight, and for other purposes, approved March 2, 1907 (34 Stat. 1145; D.C. Official Code §48-631), is repealed.

(e) 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. Official Code §§48-501 - 48-503), is repealed.

(f) An Act To prevent the sale of unwholesome food in the District of Columbia, approved December 16, 1941 (55 Stat. 807; D.C. Official Code §§22-2901 - 22-2907), is repealed. 

(g) Title 8-6:108 of the Health Regulations, issued August 22, 1967 (C.O. 67-1303; DCMR §2501 ), is repealed upon the effective date of publication in the District of Columbia Register of the notice of final rulemaking or emergency rulemaking for the regulations authorized by this act.

Sec. 9. Fiscal impact statement.

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) and shall remain in effect for no longer than 90 days, as provided for emergency acts of the Council of the District of Columbia in section 412(a) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Official Code §1-204.12(a)).