PART 1. DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 228. RETAIL FOOD ESTABLISHMENTS
SUBCHAPTER B. MANAGEMENT AND PERSONNEL
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes new §228.33, concerning Food Allergen Awareness Poster Required.
BACKGROUND AND PURPOSE
The purpose of the proposal is to comply with Senate Bill (S.B.) 812, 88th Legislature, Regular Session, 2023. S.B. 812 amends the Texas Health and Safety Code to add §437.027, requiring retail food establishments to display a poster relating to food allergen awareness in an area of the establishment regularly accessible to the establishment's food service employees. S.B. 812 prescribes the content of the poster at Texas Health and Safety Code §437.027(b).
SECTION-BY-SECTION SUMMARY
Proposed new §228.33 requires retail food establishments to place a food allergen awareness poster in an area accessible to employees and outlines the content of the poster.
FISCAL NOTE
Donna Sheppard, Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
DSHS has determined that during the first five years that the rule will be in effect:
(1) the proposed rule will not create or eliminate a government program;
(2) implementation of the proposed rule will not affect the number of DSHS employee positions;
(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;
(4) the proposed rule will not affect fees paid to DSHS;
(5) the proposed rule will create a new rule;
(6) the proposed rule will not expand, limit, or repeal an existing rule;
(7) the proposed rule will not change the number of individuals subject to the rule; and
(8) the proposed rule will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Donna Sheppard has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The cost of a food allergen awareness poster is negligible to the food establishments that must comply with the rule and is considered in balance with the positive effect on consumer safety. There are approximately 12,000 retail food establishments requiring the food allergen awareness poster under DSHS jurisdiction. DSHS is unable to estimate the number of food establishments under local jurisdiction that must also comply with the rule.
LOCAL EMPLOYMENT IMPACT
The proposed rule will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas and to implement legislation that does not specifically state that §2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Dr. Timothy Stevenson, Associate Commissioner, Consumer Protection Division, has determined that for each year of the first five years the rule is in effect, the public benefit will be increased employee awareness of the presence of food allergens in retail food establishments and the danger that those allergens present to consumers with food allergies. Employee awareness, in turn, will enhance both prevention of and response to allergenic incidents.
Donna Sheppard has also determined that for the first five years the rule is in effect, persons required to comply with the proposed rule may incur a one-time, negligible cost of not more than $50.00 to obtain a food allergen awareness poster.
REGULATORY ANALYSIS
DSHS has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
TAKINGS IMPACT ASSESSMENT
DSHS has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Written comments on the proposal may be submitted to DSHS Consumer Protection Division, Food and Drug Section, Retail Food Safety Operations, Mail Code 1987, Texas Department of State Health Services, P.O. Box 149347, Austin, Texas 78714-9347, hand-delivered to 1100 West 49th Street, Austin, Texas 78756, or by email to foodestablishments@dshs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When faxing or emailing comments, please indicate "Comments on Proposed Rule 23R052" in the subject line.
STATUTORY AUTHORITY
The new rule is authorized by Texas Health and Safety Code §437.027(c), which directs the Executive Commissioner of HHSC to adopt rules to implement legislation; and Texas Government Code §531.0055 and Texas Health and Safety Code §1001.075, which authorize the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by DSHS, and for the administration of Texas Health and Safety Code Chapter 1001.
The proposed new rule implements Texas Government Code Chapter 531 and Texas Health and Safety Code Chapters 437 and 1001.
§228.33.Food Allergen Awareness Poster Required.
(a) A food establishment shall display a poster relating to food allergen awareness in an area of the establishment regularly accessible to the establishment's food service employees.
(b) The food allergen awareness poster shall be identical or substantially similar to the sample poster displayed on the department website. If not identical, the poster shall, at a minimum, display the following information in a clear and straightforward manner:
(1) the risk of an allergic reaction to a food allergen;
(2) symptoms of an allergic reaction;
(3) the major food allergens, as determined by federal law and regulations of the United States Food and Drug Administration;
(4) the procedures for preventing an allergic reaction; and
(5) appropriate responses for assisting an individual who is having an allergic reaction.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 25, 2023.
TRD-202303167
Cynthia Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: October 8, 2023
For further information, please call: (512) 834-6753