• 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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[See pdf for proper formatting]
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.
ATCP 75.02 Applicability.
ATCP 75.03 Adoption of Wisconsin food code.
ATCP 75.04 Definitions.
Subchapter II – Licensing and Fees
ATCP 75.06 Retail food establishments; licensing.
ATCP 75.08 Retail food establishment fees.
Subchapter III – Enforcement and Appeals
ATCP 75.10 Enforcement.
ATCP 75.12 Suspension or revocation of license.
ATCP 75.14 Appeals of actions by the department.
ATCP 75.16 Appeals of actions by agent health departments.
Subchapter IV – Standards for Retail Food Establishments
ATCP 75.18 Inspections by authorized representative
ATCP 75.20 Inspections
Subchapter V – Vending of Food
ATCP 75.30 Applicability.
ATCP 75.32 Approval of vending machines and related equipment.
ATCP 75.34 Vending machine records.
ATCP 75.36 Maintenance and service connections.
ATCP 75.38 Sanitization.
ATCP 75.40 Waste disposal.
ATCP 75.42 Delivery of foods.
Subchapter VI – Micro Markets
ATCP 75.44 Applicability.
ATCP 75.46 Location.
ATCP 75.48 License holder responsibilities.
ATCP 75.50 Nature and source of food and beverages offered for sale.
ATCP 75.52 Equipment.
ATCP 75.54 Security.
ATCP 75.56 Routine maintenance at a micro market.
