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2018 Op. N.M. Att'y Gen. 1 (2018)

handle is hein.sag/sagnm0097 and id is 1 raw text is: STATE OF NEW MEXICO OFFICE OF THE ATTORNEY GENERAL HECTOR H. BALDERAS ATTORNEY GENERAL January 17, 2018 The Honorable John Arthur Smith New Mexico State Senate 490 Old Santa Fe Trail Santa Fe, NM 87501 Re: Opinion Request - Application of the 2013 Food Code to Church Bake Sales Dear Senator Smith: You have requested our advice regarding the New Mexico Environment Department's (Department) jurisdiction to enforce the federal Food and Drug Administration's (FDA) 2013 Food Code (Food Code), over churches conducting temporary events such as a rummage and/or bake sales. We understand the Department adopted the Food Code in March 2016 and it will become effective in March 2018. We further understand that the Food Code does not allow any processing of food to take place outside of a commercial kitchen. As discussed in more detail below, although the Department generally does have jurisdiction to regulate and enforce food safety rules promulgated by the Environmental Improvement Board (the Board), the Board by rule has excepted churches offering home-made baked goods for sale or service at fundraising functions from having to comply with the Food Code. As a preliminary matter, the Food Code is a model code and reference document for state, city, county and tribal agencies that regulate operations such as restaurants, retail food stores, food vendors, and foodservice operations in institutions such as schools, hospitals, assisted living, nursing homes and child care centers. The Food Code establishes practical, science-based guidance for mitigating risk factors that are known to cause or contribute to foodborne illness outbreaks associated with retail and foodservice establishments and is an important part of strengthening our nation's food protection system. See htts :/ww~fd. ~v/ownoad/Fod/Gidanc~eglaton/etilFoodProtection/FoodCode/UC M37451O.pdf. In New Mexico, the Board and the Department are charged with promulgating, maintaining, developing, and enforcing rules that address, among other things, food protection. NMSA 1978, Sections 74-1-7 and -8. In addition, the Board is charged with executing the provisions of the Food Service Sanitation Act, NMSA 1978, Section 25-1-1 to -15 (1977, and as amended) (the Act). Its purpose is to protect the public health by establishing standards and provisions for the regulation of food service establishments and by appropriate delegations of authority to the Board and TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508 STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501

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