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Technical FAQs for Food Establishments (E23-13199) (PDF, 286KB)
Please see the laws and rules page for more detailed information on the Texas Food Establishment Rules.
Table of Contents
Are all surfaces of reach-in working coolers considered
food contact surfaces?
Not all surfaces of
the reach in cooler are considered food contact. If food products are in the
reach in preparation cooler uncovered and above the load line, then the
interior portion of the lid of the reach in cooler would be considered a food
contact surface. If a ready to eat food product is sitting directly on a shelf inside of a reach in cooler or walk in cooler, then the shelf is now a food contact surface.
Are raw fruits and vegetables considered time/temperature control
for safety foods?
No, except for cut
tomatoes, cut leafy greens, cut melons and raw seed sprouts.Using Table B in §228.2 (144) of the Texas
Food Establishment Rules, cut fresh tomatoes, cut leafy greens, cut melons and
raw seed sprouts are considered a TCS food because they will support the growth
of foodborne pathogens. Whole intact
tomatoes and melons with their protective waxy cuticle/rinds and low water
activity on the vegetable/fruit surface do not support the growth of foodborne
pathogens on the surface and would not be considered a TCS Food.
Is ice cream a time/temperature control for safety food?
The federal standard
of identity for ice cream defines it as a frozen product and, therefore, it is
in a state that does not support pathogen growth due to the low temperature. In
addition, the water in the product is not available for bacterial growth, since
it is in a frozen form. Ice cream is a food product that is shipped, stored,
sold and consumed frozen. Hence, in its edible form, ice cream is always in a
state that will not support rapid pathogen
growth. Under TFER §228.75(a) stored frozen foods shall be maintained frozen.
a “check, dirty egg” as mentioned in the definition of a restricted egg?
A check is an individual egg that has a
broken shell or crack in the shell, but with its shell membranes intact and its
contents do not leak. A dirty egg is an individual egg that has an unbroken
shell with adhering dirt or foreign material, prominent stains, or moderate
stains covering more than 1/32 of the shell surface if localized, or 1/16 of
the shell surface is scattered as define under United States Department of
Agriculture (USDA) ‘United States Standards, Grades, and Weight Classes for
Subchapter B. Management and Personnel
If a public health authority is notified by a clinic or
physician that a food service worker has been diagnosed with Norovirus,
hepatitis A virus, Salmonella typhi,
Non-typhoidal Salmonella, Shigella, or Shiga toxin-producing Escherichia coli, can the health
authority reveal the person's identity to the food establishment owner or
manager? What are the HIPPA restrictions, if any?
§228.35(a) – (b); §228.257
A public health
authority can reveal the identity of a food service worker that has been
diagnosed with Norovirus, hepatitis A virus, Salmonella typhi, Non-typhoidal Salmonella,
Shiga toxin-producing Escherichia coli
to the owner or manager, so that the
employee can be excluded from the food establishment. Department of State
Health Services (DSHS) Public Sanitation and Retail Food Safety Group is not a
HIPAA covered entity (45 CFR 160.103), so we can use and disclose the
information to the employer, as authorized by our laws. Public health
authorities are acting within the scope of their authority as regulatory and
investigative agencies, and there are exceptions that authorize covered
entities, such as a clinic or physician, to disclose Protected Health
Information to DSHS or other health authorities for these reasons (45 CFR
Can a food employee wear a medical identification
A food employee,
while preparing food, is not allowed to wear jewelry on their arms or hands,
with the exception of a smooth, plain ring. Necklaces with medical information
or identification tags are acceptable.
Is a twist top bottle of water or soda considered in
violation of the closed beverage container requirement?
A food employee that
is drinking from a twist top bottle would be in violation of §228.42(a)(2). The
intent of the provision is to reduce the risk of a food employee’s hands by
contact with an area where the individual’s mouth has touched. According to the Food and Drug
Administration, a bottle with a twist top does not meet the requirement. A
container with a pop-up cap is considered to be a closed beverage container and
meet the requirement because a person does not need to use their hands to open
or close the bottle.
Subchapter C. Food
Should expired dry foods, such as macaroni, cake mixes,
etc., be marked as a violation of Item # 7?
The expiration dates
on packaged dry foods are voluntarily provided by the manufacturers. Code dates
are useful for rotating product to prevent insect infestations. Often quality
characteristics such as changes in flavor, color, or consistency are the basis
for code dating rather than food safety concerns. Item #7 should not be marked for
exceeding a voluntary expiration date unless the product is deemed unsafe,
adulterated, or otherwise unfit for consumption.
only exemption would be infant formula. Dating of on infant
formula is a federal regulation. It has
to do with nutrition more than food safety.
The nutrients in the formula must contain not less than the quantity of
each nutrient as described on the label.
Manufacturers will but a use by-date to insure that nutrient levels are
optimum. This is because formula is
considered a sole source of nutrients for an infant. The same is not true for baby foods.
Is it a violation for TCS foods (burritos, corn dogs,
chicken, etc.) to be without labeling as self-service items out of a hot-hold
If the items are not
packaged (sold in open trays, etc.), they can be sold as self-serve items. This
is a type of mini-buffet and the items would not require labeling. These should
not be confused with bulk foods, which must be labeled with a posted card or
Items that are for
customer self-service that are packaged must meet the labeling requirements in
TFER §228.79 (relating to labeling)
What documentation is necessary if a food
establishment wants to practice bare hand contact with ready-to-eat foods?
documentation must be maintained at the food establishment when bare hand contact
with ready-to-eat food is in use:
- Obtain approval from the regulatory authority
- Written policies and procedures
- Food employees sign they have received training on the risks of
contacting ready-to-eat foods with bare hands and on proper handwashing
- A written plan of the two safeguard control measures
- A list of the specific ready-to-eat foods and food additives that will
be touched by bare hands
- A written log of corrective actions when the safeguard control measures
are not followed
- A written health policy to include but not limited to exclusions and
restrictions, the Big 6 and reportable symptoms
Is it a violation of TFER, §228.66(a)(1)
if there is no separation of frozen animal products?
No, a violation would
only be marked if there was evidence of obvious cross-contamination. Frozen
animal products should be spatially separated to prevent any possible
Are distressed foods if stored with other foods on display shelves
such as canned foods or in refrigerated displays considered a priority item?
Yes, products that
are held by the permit holder for credit, redemption, or return to the
distributor, such as damaged, spoiled, or recalled products, shall be
segregated and held in designated areas that are separated from food,
equipment, utensils, linens, and single-service and single-use articles.
Is the temporary storage of in use, dispensing utensils and
thermometers in a sanitizing solution a violation?
Yes. Utensils and
food temperature measuring devices are direct food contact surfaces, which must
be air dried or adequately dried after sanitization. Failure to dry could
introduce unapproved levels of sanitizing solution into food. Acceptable
methods of storage of in use utensils are addressed in §228.68(b).
What is the violation when wet wiping cloths are not stored
in a sanitizing solution?
If the sanitizing
solution is adequate and the cloths are simply not being stored in the
container after each usage, item # 36 (core item violation) should be marked.
Once in use, when do single-use gloves need to be
changed (or replaced)?
Establishment Rules states that "if used, single-service gloves shall be
used for only one task such as working with ready-to-eat food or with raw
animal food, used for no other purpose, and discarded when damaged or soiled,
or when interruptions occur in the operation."
Single-use gloves shall be used for only one task such as working with ready-to-eat food or with raw animal food, used for no other purpose, and discarded when damaged or soiled, or when interruptions occur in the operation. The signs of contamination do not have to be visible.
Where in the TFER does it say that a product can only be
reheated one time?
The TFER does not
address the number of times that a food product can be reheated. As long as all
of the reheating, hot and cold holding and cooling requirements are met, it is
not a violation to reheat a food product multiple times.
Do commercially processed hot dogs have to be heated to 135
Hot dogs are a
ready-to-eat food and do not require heating if intended for immediate service.
If the hot dogs are for hot holding, they must be heated to 135 degrees
Fahrenheit. FDA and USDA advise pregnant women, older adults, and people with
weakened immune systems not to eat hot dogs unless they are steaming hot due to
the greater likelihood of the product containing Listeria monocytogenes.
Can non-mechanical, insulated bins be used for short term
display and sale of frozen food during peak selling hours and advertised
The Texas Food
Establishment Rules do not specify an ambient air temperature or internal
product temperature for frozen food. The rules require only that frozen food
remain frozen, which is deemed to be "hard to the touch." If a firm
implements a written operational plan that includes time monitoring, monitoring
records, and holding time limits to ensure the product does not thaw or become
"soft to the touch," then insulated bins may be used in lieu of
mechanical freezer units.
Can a product that has not met the 135–70 degrees
Fahrenheit cooling requirement after 2 hours be reheated to 165 degrees
Fahrenheit and served or does it have to be destroyed?
If a time/temperature
control for safety food is not cooled from 135 degrees Fahrenheit to 70 degrees
Fahrenheit within two hours, the food can be reheated to 165 degrees Fahrenheit
or above. The cooling process must be repeated so that compliance with the
two-hour time limit is met.
Should foods be date marked with the date of consumption or
the date of preparation?
According to the
TFER, the container of ready-to-eat TCS food shall be marked to indicate the
date by which food shall be consumed on the premises, sold or discarded. The ready-to-eat TCS food if held at 41°F
can only be held for a maximum of 7 days, with day of preparation being day 1.
Is date marking required on all cheeses repacked at retail?
No. Hard cheese
manufactured as specified in 21 CFR §133.150, with a
moisture content not exceeding 39%; and semisoft cheeses manufactured as
specified in 21 CFR §133.187, with a moisture content less than
50%; and pasteurized process cheese manufactured according to 21 CFR §133.169
and labeled as containing an acidifying agent are exempt from the date marking
provision. These cheeses must be maintained under refrigeration. Examples of
hard cheeses include Cheddar, Gruyere, Parmesan, Reggiano and Romano. Examples of semisoft cheeses include Blue, Edam, Gorgonzola, Gouda,
jack. The FDA has an interpretation from
6/11/2015 that includes a list of some exempt and non-exempt cheeses.
Does milk still have to be obtained in either ½ pint
containers or in bulk containers and does it have to be date marked?
The TFER does not address
the type or size of the milk container. Milk is a commercially processed ready
to eat time/temperature control for safety food and must be date marked at the
time that the original container is opened, if the milk will not be consumed
within 24 hours. The container must be marked with the "consume by
date". Milk in a dispensing machine may be marked by an alternative method
that is acceptable to the regulatory authority.
When using time as a public health control, must the
procedures be written?
procedures shall be prepared in advance, maintained in the food establishment
and made available to the regulatory authority upon request.
What documentation is required when using time only
as a public health control?
The TFER states
that if time only is used as the public health control:
A) Using 4 hours maximum time
1) the food shall be labeled with the discard
2) the food shall be used or discarded within 4
hours from the time when the food is removed from hot temperature control
3) out-of-temperature control food that is not
time-labeled or that is marked with a time that exceeds 4 hours shall be discarded
4) written procedures for using time only as a
public health control shall be maintained in the food establishment.
B. Using 6 hours of 70°F maximum
time for cold foods §228.75(i)(3):
1) the food shall be labeled with the discard
2) the food shall be used or discarded within 6
hours from the time when the food is removed from temperature control or if the food
reaches an internal temperature of 70°F, whichever comes first.
3) out-of-temperature control food that is not
time-labeled or that is marked with a time that exceeds 6 hours of reaches
an internal temperature of 70°F, whichever comes
first, shall be discarded
4) written procedures for using time only as a
public health control shall be maintained in the food establishment.
Required documents include:
Operating Procedures (SOP) document.
temperature log (product, date, cook time, discard time).
- Product time
labels (stickers, dots)
Is a variance necessary for establishments
that process deer meat for individual customers?
Yes, a variance would be necessary for an
establishment that processes deer meat for individual customers. The deer meat
can not be sold or served in the establishment.
are the labeling requirements for a food establishment that sells unpackaged
bakery products, such as whole pies, that are not available for customer
Retail food establishments that sell
unpackaged, bakery products, such as whole pies are not required to label the
products if the following criteria are met:
(1) A health,
nutrient content or other claim is not made;
(2) The food is prepared on the premises
of the food establishment;
(3) The ingredients
in the food, including potential allergens, can be provided to the consumer on
request from a recipe book or by other means (sign, placard).
meat and poultry products purchased or prepared by a retail food establishment
have to bear the appropriate mark of federal or state inspection?
§228.62(a)(1), Texas Meat &
Poultry §§433.025, 433.041, and 433.052
Retail food establishments that
prepare meat and poultry products can sell products they prepare at a retail
level only. These products can only be sold directly to the end point consumer.
Mobile food establishments that purchase food products containing two percent
(2%) or more cooked meat or poultry, or three percent (3%) or more raw meat or
poultry will be held to the same requirements as a restaurant. Restaurants and
other retail food establishments are required to buy and sell only meat and
poultry products that have first been inspected and passed by the United States
Department of Agriculture (USDA), the Texas Department of State Health Services
(DSHS), Meat Safety (MSA) Unit, or an approved foreign country. Meat and
poultry products purchased by the operator of a mobile food establishment must
bear complete labeling including the USDA or MSA marks of inspection.
Pre-assembled, closed-faced sandwiches are an exception to this rule, as these
meat products are exempt from USDA or MSA inspection and are not required to
bear the mark of inspection. If a retail establishment wants to make and sell
closed-faced sandwiches, however, the retail establishment must use inspected
meat components in those sandwiches.
Mobile food establishments that are
owned and operated by a licensed retail food establishment (restaurant) are
viewed as part of the restaurant and operating as an “extension” of the
restaurant’s retail food establishment license. Mobile food establishments
owned and operated by a licensed commissary may also distribute these products
on a retail level.
Subchapter D. Equipment, Utensils, and Linens
Can a cedar wood plank be used as a cooking surface?
Yes, if the following
criteria are met:
1) The plank must be a single-use item and be
discarded after use.
2) The plank must be clean, smooth, and free of
any splinters or loose debris.
3) Documentation must be available to show that
the wood was not treated with any type of chemical substance.
Is there no longer a water temperature
requirement for lobster tanks?
There is no water
temperature requirement for lobster tanks listed in the TFER. The USDA does recommend a water temperature
for live lobster of 41 to 50 degrees F.
Can a tub be used for the third compartment of a
warewashing sink if the firm is using single service tableware?
authority may approve the use of alternative warewashing equipment when there
are special cleaning needs or constraints. Approval is not contingent upon
using single service tableware. Important considerations include the volume of
utensils to be washed, size of the equipment/utensils to be washed, physical
limitations to setting up a receptacle, changes in type or scope of operation,
and the firm's history of compliance with washing and sanitizing procedures.
The regulatory authority may require written documentation as part of the
Are there specifications for a “suitable small-diameter
probe that is designed to measure the temperature of thin masses”?
There are no specific requirements for small diameter probes stated in
the TFER. Thin foods are considered to be foods that have a thickness of less
than 0.5 inch. In the Public Health Reasons, Annex 3 of the FDA Food Code, FDA
states that temperature measurements in thin foods can be accurately measured
using a small diameter probe 1.5 mm or less connected to a device such as a
thermocouple thermometer. This does not mean that only thermometers with
probes of 1.5 mm or less are acceptable, or that it must be a thermocouple thermometer. A thermometer is acceptable if the probe can be inserted
into the product so that there is an equal amount of food surrounding the
temperature sensing point and if the temperature sensing point is at or near
the tip of the probe.
Would it be a violation if the chlorine concentration at
the final rinse step on a mechanical warewashing machine was greater than the
amount indicated on the chart on page 106 of the TFER, but was less that 200
This would be marked
as a priority foundation violation. The dishes are being sanitized, but the
machine is not meeting the manufacturer's specifications.
If the proper sequence for manually washing dishes is not
being followed, how should the violation be marked?
Priority item #10
would only be marked if the sanitizing solution was not at the proper
concentration. Check the strength of the solution because the detergent and
food debris can break down the solution. If the sanitizer is acceptable, mark
the violation as a priority foundation item # 33. Explain the rationale for the
washing sequence to the Person in Charge (PIC).
What is an “irreversible registering temperature
An "irreversible registering temperature indicator" is a
temperature measuring device that shows or indicates the maximum or minimum (depending
on whether the instrument is designed for hot or cold temperatures) temperature
measured. Examples of irreversible registering temperature indicators include
hot and cold holding thermometers, hot and cold registering thermometers, and
temperature indicating papers and tapes. A dish machine's internal thermometer
may not be an irreversible registering thermometer; consult the manufacturer's
instruction manual. If it is not an irreversible registering thermometer,
one would have to be provided.
Subchapter E. Water, Plumbing, and Waste
What is the required temperature for hot water at the
temperature for hot water at the handwashing facility (sink) is 100 degree
Does a triggered sprayer on the end of a hose serve as
adequate backflow prevention?§228.146(c) and
A triggered sprayer
on the end of a hose is not an adequate backflow prevention device.
The service sink requirement (mop sink) does not specify
whether the sink is required to have hot and cold running water. Is there another provision that would clarify
The TFER, §228.143(b), states that water under
pressure shall be provided to all fixtures, equipment, and nonfood
equipment. A service sink is a fixture
that must be supplied with water under pressure. In addition to being used to dispose of mop
water, a service sink or curbed cleaning facility is used for the cleaning of
mops. Water is necessary for the cleaning of the mops. The TFER does not
contain a provision that specifies the temperature of the water at the service
sink. Certain cleaning agents require
certain temperatures to work effectively to remove soil and debris; therefore, the
water temperature would be dependent upon the cleaning agent used in the
Is it acceptable for the handwash lavatory to be greater
than 25 feet from an ice bagging operation if there are no intervening
procedures should be evaluated. Typically, bagging ice is performed as a batch
operation. If employees wash their hands prior to bagging and use good hygienic
practices, the lavatory may be greater than 25 feet away. No maximum distance
requirement has been established for the lavatory location.
Is an indirect ice machine drain that extends into a wastewater
pipe a priority violation?
Yes, Except as specified in paragraphs (2),
(3) and (4) of this subsection, a direct connection may not exist between the
sewage system and a drain originating from equipment in which food, portable
equipment, or utensils are placed.
Further supported by the Uniform Plumbing
Code. Please check with local Code Enforcement for any additional plumbing
Bins, sinks, and
other equipment having drainage connections and used for the storage of
unpackaged ice used for human ingestion, or used in direct contact with
ready-to-eat food, shall be indirectly connected to the drainage system by
means of an air gap.
Subchapter F. Physical Facilities
Is one fly on the preparation table a violation?
§228.186(k), states the presence of insects, rodents, and other pest shall be
control to eliminate their presence. The would be a core item #34 violation
Should the presence of dead bugs be marked as a violation
of Item #34?
The investigator must
evaluate whether insects are being eliminated. Typically this requires
evaluating whether the firm is routinely monitoring for pest activity and
properly using traps or chemical control, if necessary. If live insects appear
to be out of control or failure to remove dead insects, pest, etc., then Item #
34 should be marked as a core violation. If dead insects are located on a
food-contact surface, Item # 10 should be marked as a priority violation.
Subchapter G. Poisonous or Toxic Materials
What are the names of some approved
DSHS does not currently maintain such a
list. A list of approved sanitizer can
be found in 21 CFR178.1010 and also can be found on the Environmental
Protection Agencies website: www.epa.gov. Sanitizers are regulated as pesticides.
Is the 400 ppm Quaternary Ammonia Sanitizer
On September 6,
2007, the US EPA issued in the Federal Register a final rule which amends 40
CFR 180.940(a) to allow the use of
quaternary ammonia, di-n-alkyl (c 8-10) dimethyl ammonium chloride in end use
solution concentration up to 400 ppm active quaternary ammonium compound in
retail eating places. The chemical compound should be listed on the
Is a mechanical warewashing machine dispensing 200 ppm
chlorine on the final rinse a violation?
It would only be a
violation if the concentration was greater than 200 ppm chlorine and it would
be a violation of Item #18 because that concentration is considered toxic, per
21 CFR 178.1010. Concentrations of the chlorine solution can vary, depending on
the temperature and pH of the final rinse water. Refer to the chart on page 106
of the TFER. If the concentration was less than was required for the
corresponding water temperature and pH, it would be a violation of item #10.