Another recent Alert noted that the Food Safety Modernization Act (FSMA), signed by President Obama in January 2011, imposes some new and stricter record-keeping requirements on companies in the food supply chain. The FSMA also expanded the FDA's authority to inspect such records any time the FDA "has a reasonable belief that an article of food is adulterated and presents a threat of serious adverse health consequences or death to humans or animals." The FDA recently updated a Guidance document on food records to incorporate this expanded authority to access records, "Questions and Answers Regarding Establishment and Maintenance of Records By Persons Who Manufacture, Process, Pack, Transport, Distribute, Receive, Hold, or Import Food (Edition 5)." At the same time, the FDA issued a draft Guidance on the issue titled, "Draft Guidance for Industry: FDA Records Access Authority Under Sections 414 and 704 of the Federal Food, Drug, & Cosmetic Act."

Both the updated Guidance and the new draft Guidance incorporate the "reasonable belief" standard for authorizing the FDA to demand copies of a firm's records on 24 hours notice. This standard has also been incorporated into the applicable regulation at 21 C.F.R. § 1.361. The practical effect of this change is that it will be more difficult than it was under prior law to challenge successfully an FDA request for records.

These recent developments also provide a good opportunity to remind companies of the surprising breadth of some food record-keeping requirements. Does your company furnish bottled water, coffee, tea, or other beverages to employees? If so, it is subject to regulations requiring it to maintain certain records of the source of those beverages. In fact, as far as bottled water is concerned, this example is taken directly from the Q&A Guidance (Edition 5) described above. The requirement would apply equally to any type of food provided to employees. This example highlights the need for any company that operates at any point in the food supply chain (except certain expressly excluded firms, such as farms and restaurants) to become familiar and begin complying with the record-keeping regulations if they are not already doing so.

A pdf copy of the Q&A Guidance is available here and the draft Guidance is available here.