Changes in the way Americans order and buy food are creating uncertainty about how food safety regulators will police the increasingly popular food delivery companies in the event of food contamination.
The Food and Drug Administration is charged under the Food Safety Modernization Act with simplifying the tracking of food from production to consumer. FDA's November 2022 rule requires companies to keep new and more detailed records for some foods that would facilitate faster tracing of foodborne illness outbreaks.
Companies along the food supply chain are working to meet these regulations ahead of the compliance deadline in January 2026 – about 18 months from now. But along with general challenges in adopting these changes, experts point to one key area of uncertainty: food delivery.
App-based delivery firms like Uber Eats and DoorDash have taken off since the COVID-19 pandemic and changed the model of traditional restaurant-handled delivery systems. Other ventures such as home-delivered meal kits and grocery store deliveries also have grown.
In the United States, 70% of consumers report ordering food delivery once a month, with 44% of U.S. diners using a third-party app to order delivery two or four times, according to DoorDash data. Another 23% of diners used these apps five to seven times monthly.
As the supply chain moves to bulk up food safety traceability, it is not clear who is accountable if something goes wrong with food delivery, or how to properly enforce and regulate the industry.
Flaws in how FDA has approached the Food, Drug and Cosmetic Act have created regulatory “weird spots” in areas like food delivery, said Steven Mandernach, executive director of the Association of Food and Drug Officials, in an interview. Historically, restaurants that supply the food have taken on that responsibility.
Third-party delivery companies often have contracts that limit their liability, Mandernach said. However, the restaurant or food producer also has “zero” control over what happens to the food once it leaves the building.
There are difficulties with the traceability rule because this is the first time the FDA has assumed jurisdiction over the retail industry, including grocery stores and restaurants, Mandernach said.
Larger companies are better positioned to meet the rule, Mandernach said. Instacart and Giant, for example, have already meaningfully considered food delivery and traceability, and have set high standards in this area, like required training for drivers, Mandernach said. But others may still be behind.
It becomes more complex with a company that markets itself more as a tech company than a food delivery company, Mandernach said. Some often deliver products for which they are not the official retailer and can argue they are exempt from regulations because they are delivering products on behalf of someone else, he explained.
“No one’s responsible yet again, because they're contracting away liability of it,” Mandernach said. “So you know, the poor guy in the middle that's actually the restaurant or grocery store is ending up with all the liability, all the risks and zero control.”
Uber Eats, Instacart and Grubhub did not respond to requests for comment.
There’s a “not us” attitude when it comes to some of the tech companies stepping into the food delivery space, Mandernach said. The regulatory system is also hazy on this issue, which could create legal challenges down the road.
“This is one of our challenges is we have such a hesitation to change the food safety laws and regulations,” Mandernach said. “We are so behind the times for so many things.”
It’s difficult to tell how FSMA 204 would affect the e-commerce food space. The rule only covers some products, which could limit the type of delivered foods and meals under the rule, he said.
FDA said it is working to establish more clarity around the safety risks associated with the sale of food through an e-commerce platform, how the industry addresses these risks and concerns with different types of delivery models available. Additionally, the agency is assessing the “regulatory landscape and what the regulatory community along with the FDA can do to address any gaps.”
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“We are not yet positioned to state specific actions the FDA may take or policies that may develop but can assure that we are working internally and will continue to engage externally with all representative stakeholders for a path forward,” said an agency spokesperson in an email.
Regulating meal kits is another uncertain area. If the kit includes meat or poultry, the Food Safety and Inspection Service likely has authority, but if it doesn’t, local or state health departments or agencies likely are in charge, Mandernach said at a recent Food Safety Summit in Chicago.
There are several e-commerce players doing the right things and taking steps to ensure consumers feel good and secure with their food products, said Stan Osuagwu, vice president of food safety and quality assurance for Home Chef, during a panel at the summit.
Home Chef, a wholly owned Kroger subsidiary since 2018, focuses on the consumer and tends to overcommunicate with customers, he said. There’s a shared responsibility with ensuring a meal kit delivery is moved from the doorstep to appropriate storage in a safe and timely manner, but Osuagwu said Home Chef does not “fall back” and say it’s the customer’s responsibility.
The company also has implemented a number of procedures in its supply chain to improve food safety and traceability, Osuagwu said. For example, there’s an internal education system to train employees on food safety and sanitation issues.
Additionally, he said the company is not waiting for regulations before taking action. For example, he said it has implemented food audit systems to assign a scorecard to identify a risk level for food from each supplier. If a supplier has a high-risk rating, it signals the company needs to engage more with the partner.
Home Chef also has implemented technology to increase data collection, so it is able to trace ingredients to a plant and supplier, which aids in recall situations.
“We're exceeding whatever regulatory guidance that's out there,” Osuagwu said. “We have state-of-the-art facilities that we can actually expand into. So we’re building for the future.”
A lot of companies in the delivery chain are communicating more food safety and handling instructions to their customers, said Britanny Saunier, executive director of the non-profit Partnership for Food Safety Education.
Recently, the partnership launched a campaign to inform consumers about how to keep delivery food safe. The campaign encourages consumers to evaluate the company’s food safety practices, arrange safe delivery times and properly inspect delivered items for issues or tampering.
“People are handling delivered foods, and we need to help people understand the role that they play within this delivery network,” Saunier said at the summit.
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