Contains Nonbinding Recommendations 
Guidance for Industry  
Questions and Answers Regarding 
Establishment and Maintenance  
of Records By Persons Who 
Manufacture, Process, Pack, 
Transport, Distribute, Receive, Hold, 
or Import Food 
(Edition 5) 
    Additional copies are available from:  
Outreach and Information Center, HFS-009 
Center for Food Safety and Applied Nutrition 
Food and Drug Administration 
5001 Campus Drive
College Park, MD  20740 
(Tel) 1-888-723-3366  
http://www.fda.gov/FoodGuidances 
You may submit electronic or written comments regarding this guidance at any time.  Submit 
electronic comments to http://www/regulations.gov.  Submit written comments on the 
guidance to the Division of Dockets Management (HFA-305), Food and Drug 
Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.  All comments should 
be identified with the docket number listed in the notice of availability that publishes in the 
Federal Register.    
U.S. Department of Health and Human Services 
Food and Drug Administration 
Center for Food Safety and Applied Nutrition  
February 2012 Contains Nonbinding Recommendations 
Table of Contents  
 
 
I.  Introduction 
II.  Background  
III.  Questions and Answers  
A.  Who is Subject to the Records Requirements? (Section 
1.326)  
B.  Who is Excluded From All or Part of the Records 
Requirements? (Section 1.327)  
C.  Definitions (Section 1.328)  
D.  Do Other Statutory Provisions and Regulations Apply? 
(Section 1.329)  
E.  Can Existing Records Satisfy the Records Requirements? 
(Section 1.330)  
F.  What Information is Required in the Records You Must 
Establish and Maintain to Identify the Nontransporter 
and Transporter Immediate Previous Source and 
Immediate Subsequent Recipients? (Sections 1.337 and 
1.345)  
G.  Who is Required to Establish and Maintain Records for 
Tracing the Transportation of All Food? (Section 1.351)  
H.  What Information is Required in the Transportation 
Records? (Section 1.352)  
I.  What Are the Record Retention Requirements? (Section 
1.360)  
J.  What Are the Record Availability Requirements? 
(Section 1.361)  
  2 Contains Nonbinding Recommendations 
K.  What Records Are Excluded From the Records 
Requirements? (Section 1.362)  
L.  What Are the Consequences of Failing to Establish and 
Maintain Required Records or Make Them Available to 
FDA? (Section 1.363)  
M.  What Are the Compliance Dates for the Records 
Requirements? (Section 1.368)  
  
 
 
 
 
  3  Contains Nonbinding Recommendations 
rule requires the establishment and maintenance of records by persons who manufacture, 
process, pack, transport, distribute, receive, hold, or import food in the United States. Such 
records are to allow for the identification of the immediate previous sources and the immediate 
subsequent recipients of food.  
The FDA Food Safety Modernization Act (FSMA) (PL 111-353), signed into law on January 4, 
2011, amended sections 414 and 704 of the FD&C Act to expand FDAs authority to access 
records relating to foods that may cause serious adverse health consequences or death to 
humans or animals.  FDA issued an interim final rule (IFR) that revises section 1.361 (21 CFR 
1.361) to reflect the FSMA amendments to the FD&C Act in February 2012. This document has 
been updated to reflect these changes.   
 
Additional guidance on FDAs records access authority is provided in FDA Records Access 
Authority Under Sections 414 and 704 Federal Food, Drug, & Cosmetic Act: Questions and 
Answers. 
 
QUESTIONS AND ANSWERS 
  
A. Who is Subject to this rule?  (Section 1.326) 
1. General Questions 
1.1 Q: A brokerage division of a shipping company handles nationwide shipping needs for 
several other shippers. The brokerage division does not physically take custody of the food, but 
negotiates the freight rates and assigns the contracts to independent carriers. Does the brokerage 
division have record keeping obligations under this regulation? 
A: Yes. Section 1.328 defines a transporter as a person who has possession, custody, or control 
of an article of food in the United States for the sole purpose of transporting it. For the purpose 
of this regulation, a person, such as the shipping company above, who enters into a contract to 
transport an article of food and has control over the food is considered a transporter, even if the 
actual transport is subsequently subcontracted to another entity. In the above example, the 
freight broker and the independent carrier are transporters subject to the Final Rule in 
accordance with section 1.352. This scenario differs from that described in the response to 
Comment 16 in the Final Rule preamble, in which FDA states that the recordkeeping 
requirements do not apply to brokers who act only to facilitate distribution, sale, or 
transportation of food by processing information or paperwork associated with these functions, 
such as customs brokers who file entry information on food imported or offered for import with 
U.S. Customs and Border Protection. Brokers who do not directly manufacture, process, pack, 
transport, distribute, receive, hold, or import food are not subject to the requirements of this 
regulation. 
1.2 Q: A firm purchases bottled water for use by its employees. Does this firm have to establish 
and maintain records? 
A: Yes. The firm must establish and maintain records of the nontransporter and transporter 
immediate previous sources of the bottled water in accordance with section 1.337. However, 
section 1.327(d) excludes persons who distribute food directly to consumers from the 
2  Contains Nonbinding Recommendations 
requirements in section 1.345 to establish and maintain records to identify the nontransporter 
and transporter immediate subsequent recipients as to those transactions. Therefore, the firm 
does not have to establish records of distribution to its employees. 
1.3 Q: Drug manufacturers often compound their products using various excipients (e.g., 
lactose, sugar alcohols, amino acids, and beta-carotene) that are obtained as food-grade 
material. Are the drug manufacturers who obtain these materials covered by this regulation? If 
another company provides one of these materials to the drug manufacturer, is that transaction 
covered by this regulation? 
A: No. Section 1.326(a) requires that persons who manufacture, process, pack, transport, 
distribute, receive, hold, or import food (including food ingredients) must establish and 
maintain records as required by this regulation. However, if a food ingredient is transferred to 
an immediate subsequent recipient who will use that substance as a drug excipient, FDA 
considers the substance to be a drug component regulated under applicable drug statutory and 
regulatory provisions. FDA is not requiring the original firm, the transporter, and the recipient 
(the drug manufacturer) to establish and maintain records of this transaction. Conversely, if a 
firm manufactured a substance intended primarily for use as a drug excipient, but sold some of 
that substance for use in food or feed, the firm would have to establish and maintain records of 
that transaction. 
1.4 Q: Are over the counter vitamins covered by this regulation? 
A: Yes. Food in this regulation has the same meaning as under section 201(f) (21 U.S.C. 321(f)) 
of the Federal Food, Drug, and Cosmetic Act. Food includes dietary supplements, such as over-
the-counter vitamins (21 U.S.C. 321(ff)). 
1.5 Q: Halloween candy is donated to a firm's distribution center and then distributed to the 
firm's retail stores to be given out to children. There is currently no record kept of the candy 
receipt or distribution to retail stores. Is the practice exempt from this regulation? 
A: Section 1.326(a) requires that persons who manufacture, process, pack, transport, distribute, 
receive, hold, or import food must establish and maintain records as required by this regulation. 
However, as discussed in the response to Comment 13 in the Final Rule preamble, a vertically 
integrated company does not have to establish and maintain records of internal transactions. The 
distribution center must always establish and maintain records of the transporter and 
nontransporter immediate previous sources of the candy, but if the distribution center, 
transporter, and retail store are all part of the same company under identical ownership, 
distribution to retail stores is considered an internal transfer for the purpose of this regulation 
and no records of the transaction must be established and maintained. If the distribution center 
is not integrated with the retail store (e.g., not part of the same company), or if an independent 
transporter carries the candy between them, then records of this transaction must be established 
and maintained. Finally, section 1.327(d) excludes persons who distribute food directly to 
consumers from the requirements in section 1.345 to establish and maintain records to identify 
the nontransporter and transporter subsequent recipients as to those transactions. Therefore, the 
retail store does not need to establish records identifying the immediate subsequent recipients of 
the candy if those recipients are consumers. 
3  Contains Nonbinding Recommendations 
 1.6 Q: A facility manufactures fruit and vegetable salads, and the waste is removed by an 
outside entity that may direct it to a landfill, compost, or animal feed. Is the facility required to 
track the waste? 
A: FDA intends to consider exercising enforcement discretion if a facility manufacturing fruit 
and vegetable salads releases food waste to a nontransporter immediate subsequent recipient 
who directs the waste to a landfill or compost facility or to a facility for consumption by 
animals without further manufacturing/processing. FDA does not intend to consider exercising 
enforcement discretion with regard to section 1.345: however, if the waste will be further 
manufactured/processed (e.g., by rendering facilities) before it is consumed by animals, or if 
there is more than one intermediary (transporter or nontransporter) between the manufacturing 
facility and the facility where the waste is disposed of at a landfill or compost facility or is 
consumed by animals. 
 1.7 Q: [Added November 2005] A nonprofit food business incubator owns a facility with 
kitchens, cold storage, and warehouse space. The incubator rents kitchen and storage space to 
many small manufacturers engaged in product development. The incubator is the receiving 
point for all food coming into the facility. The food is stored in the warehouse and freezers 
under the control of incubator employees until each manufacturer takes possession. What are 
the incubator's responsibilities under the recordkeeping rule? 
A: The incubator is considered a nontransporter covered by this regulation. Section 1.326 states 
that covered persons are those who manufacture, process, pack, transport, distribute, receive, 
hold, or import food. In the specific case above, the incubator receives and holds food at a 
facility that it owns and controls before releasing it to the resident manufacturers. The incubator 
must establish and maintain records for food received and released that identify the 
nontransporter and transporter immediate previous sources and immediate subsequent 
recipients, as required by sections 1.337 and 1.345. The incubator is not exempt as a nonprofit 
organization, as discussed in the response to Comment 44 in the Final Rule preamble, because it 
is not an establishment that prepares or serves food directly to the consumer. 
 1.8 Q: [Added November 2005] A food laboratory/culinary school occasionally brings in 
ingredients and prepares food to be given to staff members and/or members of the general 
public. For example, some laboratories bring in ingredients to make a small batch of a certain 
product and offer that product for consumption to other employees and/or selected guests. These 
foods are not being prepared for commercial purposes. Is this type of food preparation and 
distribution exempt from the rule? 
A: Yes. As discussed in the response to Comment 37 in the Final Rule preamble, a person who 
prepares and distributes food directly to consumers for immediate consumption is exempt under 
the restaurant exemption with respect to that food. 
 1.9 Q: [Added November 2005] Company A receives a call from Company C requesting a 
certain product. The product is not currently in Company A's warehouse. Company A calls 
Company B and requests that Company B ship the product directly to Company C. Company A 
then charges Company C for the product. Must Company A establish and maintain records of 
this transaction? 
4  Contains Nonbinding Recommendations 
A: Yes. Section 1.328 defines a nontransporter as a person who owns food or who holds, 
manufactures, processes, packs, imports, receives, or distributes food for purposes other than 
transportation. A person who enters into a contract to hold, manufacture, process, pack, import, 
receive, or distribute food is considered a nontransporter, even if that person subcontracts the 
actual performance of the covered action to another entity. In the above example, both 
Company A and Company B are nontransporters subject to the Final Rule. Both are responsible 
for complying with the rule, which either may do as a matter of business practice, but legal 
responsibility for establishment and maintenance of records and for meeting the records access 
timeframes specified in section 1.361 remains with both parties. Company C may identify either 
Company A or B as its nontransporter immediate previous source. 
 1.10 Q: [Added November 2005] Is a winery subject to this regulation? 
A: Yes. Section 1.326 states that persons who manufacture, process, pack, transport, distribute, 
receive, hold, or import food are covered by this regulation. The winery is considered a 
manufacturer and must establish and maintain records of the food (including ingredients) that it 
receives as well as the food (wine) that it releases, in accordance with sections 1.337 and 1.345. 
If the winery also grows and harvests grapes that it uses to manufacture the wine, then it would 
be engaged in a mixed activity. In this instance, the growing facility may qualify for the farm 
exemption; the manufacturing activity would remain subject to the nontransporter record 
requirements. 
 1.11 Q: [Added November 2005] Some wineries are co-located with gift shops where wine can 
be sampled and purchased. Are these gift shops/tasting areas exempt from the rule? 
A: No. A gift shop co-located with a winery is an example of a mixed facility that engages in 
both manufacturing and retail activities, and therefore does not qualify for the restaurant 
exemption provided by section 1.327(b). However, if the gift shop and winery are under the 
same ownership, they are vertically integrated, as discussed in the response to Comment 13 in 
the Final Rule preamble and elsewhere in this document. Records do not have to be established 
and maintained for transfers of wine from the winery to the gift shop. Records must be 
established and maintained for food received from other sources in accordance with section 
1.337. The gift shop does not have to establish and maintain records of food it releases directly 
to consumers, in accordance with the retail exemption provided by section 1.327(d). 
 1.12 Q: [Added November 2005] An airline purchases tax-free liquor in the United States that 
is served strictly on international flights. Is this practice covered by this regulation? 
A: The answer depends on whether the airline meets the definition of a retailer, as provided in 
section 1.327(e), or a restaurant, as provided in section 1.328. A restaurant is entirely exempt 
from this regulation. A retailer is covered only with respect to those activities that occur in the 
United States, as specified in section 1.326(a). A retailer, as with other covered persons, must 
establish and maintain records for food it receives even if that food is not consumed in the 
United States, as discussed in the response to Comment 22 in the Final Rule preamble. 
 1.13 Q: [Added November 2005] A manufacturer sells its food product on consignment in a 
retail store. Although the food product is delivered to a retail store under separate ownership, 
5  Contains Nonbinding Recommendations 
the manufacturer still owns the food product until it is sold to a consumer. In this situation, is 
the retail store required to establish and maintain records of the receipt of the food product? 
A: Yes. Both the manufacturer and the retail store are nontransporters with respect to this food 
product and are required to establish and maintain records of receipt and release of the food in 
accordance with section 1.337 and 1.345. Section 1.328 defines a nontransporter as a person 
who owns food or who holds, manufactures, processes, packs, receives, or distributes food for 
purposes other than transportation. While the manufacturer owns the food, the retail store 
receives and holds the food. Therefore, the retail store should establish and maintain records 
when the food is received that identify the nontransporter and transporter immediate previous 
sources, in accordance with section 1.337. In the case described above, the nontransporter 
immediate previous source is the food manufacturer. 
 1.14 Q: [Added November 2005] In Control State bailment warehouses, which in the beverage 
alcohol industry are operated by or on behalf of Control States such as North Carolina, Virginia 
and Washington, beverage alcohol products are owned by the manufacturer or importer until the 
Control State withdraws those goods from the warehouse for shipment. Beverage alcohol 
products in these bailment warehouses are under the physical possession and are controlled 
substantially by the Control State. Is the Control State subject to the recordkeeping rule 
requirements for product in bailment warehouses? 
A: Yes. Both the Control State and the owner of the alcohol product are covered entities. 
 1.15 Q: [Added June 2006] A firm manufactures sodium lignosulfonate (SL), to be used as an 
ingredient in animal feed. The sodium lignosulfonate is manufactured by reacting ammonium 
lignosulfonate with caustic soda (sodium hydroxide). Is the firm required to establish and 
maintain records of the receipt of these ingredients? Are the firm's immediate previous 
transporter and nontransporter source of these ingredients subject to this regulation? 
A: A substance is considered food for purposes of subpart J if it is reasonably likely to be 
directed to a food use. Because the SL is to be used as a food or feed ingredient, the 
manufacturer of the SL is subject to the regulation. Sections 1.337 and 1.345 require persons to 
establish and maintain records when food is received or released. "Food," as defined in section 
1.328 and discussed in the response to Comment 61 in the Final Rule preamble, includes food 
and feed ingredients and additives. For the purpose of the Final Rule, constituents or precursors 
of food and feed ingredients and additives are considered food to the extent they are reasonably 
likely to be directed to a food use. As noted above, a person is subject to the requirements of 
this rule if a substance in their possession or ownership is reasonably likely to be used as a food 
or food ingredient or additive. For example, if the supplier of caustic soda in this example is 
under contract to produce it to a certain grade suitable for food use, the caustic soda is 
reasonably likely to be used as a food, and the firm would be subject to the regulation. 
 1.16 Q: [Added June 2006] Is a biotech firm that produces recombinant human proteins in rice 
for extraction as a food additive or ingredient subject to these regulations? The firm does their 
own processing with dedicated equipment and storage, and hires a transport company to move 
the product to their own milling facility where the "milled" ingredient is produced. 
6  Contains Nonbinding Recommendations 
A: Yes, the biotech firm is subject to the Final Rule. Section 1.326(a) requires that persons who 
manufacture, process, pack, transport, distribute, receive, hold, or import food (including food 
ingredients) must establish and maintain records as required by the Final Rule. Sections 1.337 
and 1.345 require persons to establish and maintain records when food is received or released. 
"Food," as defined in section 1.328 and discussed in the response to Comment 61 in the Final 
Rule preamble, includes food and feed ingredients and additives. However, as discussed in the 
response to Comment 13 in the Final Rule preamble, a vertically integrated company does not 
have to establish and maintain records of internal transactions, except when an independent 
transporter carries the food between the facilities under the same ownership. In this case where 
the biotech firm hires an independent transport company, records must be established and 
maintained of the release and receipt of the food. 
 1.17 Q: [Added September 2006] A business establishment has a vending machine on site that 
provides food for purchase by its employees. Does the business establishment have to establish 
and maintain records? 
A: No. Persons who manufacture, process, pack, transport, distribute, receive, hold, or import 
food in the United States are subject to this regulation, in accordance with section 1.326(a). 
Section 1.328 defines a nontransporter as a person who owns food or who holds, manufactures, 
processes, packs, imports, receives, or distributes food for purposes other than transportation. In 
the above example, both the owner of the food (the vending machine operator) and the business 
establishment who receives and holds the food are nontransporters subject to this regulation 
with respect to the food, unless an exemption applies. Section 1.327(n) excludes persons who 
receive or hold food on behalf of specific individual consumers and who are not also parties to 
the transaction and who are not in the business of distributing food from all of the requirements 
of this regulation. Although the business establishment is receiving and holding the food in the 
vending machine on its premises, it is not purchasing the food nor in the business of distributing 
food and therefore is not a party to the transaction and not required to establish and maintain 
records. However, the vending machine operator is required to establish and maintain records as 
a retail food establishment, as prescribed in 1.327(e)(4). 
2. Intrastate (Reserved) 
  
B. Who is Excluded From All or Part of the Records Requirements? (Section 1.327) 
3. General Questions 
FDA has addressed questions we received on this issue in the Final Rule. 
 
4. Farms 
 4.1 Q: [Added November 2005] Company A cools, holds in cold storage, markets and sells a 
raw agricultural commodity (RAC) grown on a farm land which is owned by company B and 
farmed by company C. The RAC is harvested by a contractor company D that places the RAC 
grown on the farm land leased and farmed by company C directly into unlined corrugated 
boxes. The boxes are marked as a product of company A and the box serves as the primary 
container for the RAC during distribution and wholesaling. Which companies and activities 
7  Contains Nonbinding Recommendations 
qualify for the farm exemption? Are the corrugated boxes a finished container for which records 
must be established and maintained? 
A: Company B, C, and D are all exempt from the requirements of this regulation as provided by 
the farm exemption in section 1.327(a). Company A must establish and maintain records of the 
food that it receives and distributes. Section 1.328 defines a farm as a facility in one general 
physical location devoted to the growing and harvesting of crops, the raising of animals, or 
both. Cooling produce is considered part of harvesting and persons that pack or hold food 
grown on that farm or another farm under the same ownership remain within the farm 
exemption but Company A is engaged in other nonexempt activities and is not within the farm 
exemption. Accordingly, Company A must establish and maintain records of the receipt of the 
food as required by section 1.337 and must also establish and maintain records of subsequent 
release of the food in accordance with section 1.345. Neither Company A nor the other 
companies mentioned above are required to establish and maintain records with respect to the 
corrugated cardboard boxes. In the above example, Company D is included in the farm 
exemption and is not subject to any requirements of this regulation. If Company D were not a 
farm, it would be subject only to the record access requirements of section 1.327(j) as to the 
packaging, because the box serves as wholesale packaging and is not the finished container in 
which the food will be received by the consumer. 
 4.2 Q: [Added September 2006] (Amended 4.2 from 2nd Edition) A farm grows, dries, and 
chops alfalfa before releasing it to another person for use as animal feed. Is the farm still exempt 
from this regulation? 
A: FDA considers harvesting of grains and hay to be traditional farming activities covered 
under the farm exemption. "Farm" is defined in section 1.328 as a facility in one general 
physical location devoted to the growing and harvesting of crops, the raising of animals 
(including seafood), or both. Washing, trimming of outer leaves, and cooling produce are 
considered part of harvesting. The term "farm" includes: (1) Facilities that pack or hold food, 
provided that all food used in such activities is grown, raised, or consumed on that farm or 
another farm under the same ownership; and (2) Facilities that manufacture/process food, 
provided that all food used in such activities is consumed on that farm or another farm under the 
same ownership. 
The answer to the question depends on whether the drying and chopping of the alfalfa is part of 
traditional harvesting activities that is within the farm exemption, or a post-harvest 
manufacturing/processing activity that is subject to the rule. FDA considers "harvesting" as 
encompassing those activities traditionally performed during the removing of a crop from the 
field through the safe storage of the crop. Thus, drying and chopping activities that are an 
essential part of the harvest process and which are traditional farming operations for a particular 
crop are activities covered by the "farm" definition, as long as all other conditions of the "farm" 
definition are met. For example, the harvesting of hay typically includes the cutting in the field, 
drying, baling and storage of the hay. (With hay, drying is particularly important to prevent 
spontaneous combustion from occurring.) If, however, a farmer were to remove cut hay from 
storage and chop the hay to make hay cubes to sell, then establishment and maintenance of 
records would be required as FDA considers this activity manufacturing/processing of the 
already stored hay. (This is similar to chopping carrots into 3-inch slices after they are harvested 
for sale as snack foods; such activity is not integral to harvesting the carrots and is a post-
8  Contains Nonbinding Recommendations 
harvest manufacturing/processing activity subject to the rule, unless the carrots are consumed 
on the farm on which grown or another farm under the same ownership.) 
"Manufacturing/processing" as defined in section 1.328 means "making food from one or more 
ingredients, or synthesizing, preparing, treating, modifying or manipulating food, including 
food crops or ingredients. Examples of manufacturing/processing activities are cutting, peeling, 
trimming, washing, waxing, eviscerating, rendering, cooking, baking, freezing, cooling, 
pasteurizing, homogenizing, mixing, formulating, bottling, milling, grinding, extracting juice, 
distilling, labeling, or packaging." As stated above, under section 1.328 a farm can 
manufacture/process food and retain its exemption under the rule, provided that all food used in 
such activities is consumed on that farm or another farm under the same ownership. 
 4.3 Q: [Added June 2006] Egg farms are usually either "in-line" or "off-line" operations. An in-
line farm generally has one or more (usually several) henhouses on a single site that supply eggs 
to, and are usually connected physically to, a facility often called a processing plant. In this 
plant, the eggs are washed, sanitized, graded and sized, and then placed either in cartons or on 
flats or other containers, after which they may be held in a cooler until transported to a 
customer. An off-line egg operation generally consists of several individual farms (often but not 
necessarily contract farms) with henhouses but no processing facility, supplying eggs to a 
central processing plant that then carries out all the operations described in the preceding 
paragraph. Does the presence of a shell egg processing plant somehow cause a facility not to 
qualify as a "farm" for purposes of the farm exclusion in the establishment and maintenance of 
records Final Rule? 
A: No. As discussed in response to Comment 67 in the Final Rule preamble, FDA is fulfilling 
Congress's intent to exempt "farms" by defining "farm" to mean a "facility in one general 
physical location devoted to the growing and harvesting of crops, the raising of animals 
(including seafood), or both," and that "washing, trimming of outer leaves, and cooling produce 
are considered part of harvesting." FDA considers sorting, grading, wrapping and boxing 
harvested food for the sole purpose of transporting this food off the farm to be "packing or 
holding" activities. Such activities fall within the "farm" definition, which includes facilities that 
pack or hold food, provided all food used in such activities is grown, raised or consumed on that 
farm or another farm under the same ownership. Thus, a farm that performs these packing 
activities will not necessarily cease to be a farm and therefore cease to be exempt from these 
regulations. 
Although the question refers to the on-farm facility as a "processing plant," section 1.328 
defines the term "manufacturing/processing" to mean "making food from one or more 
ingredients, or synthesizing, preparing, treating, modifying, or manipulating food, including 
food crops or ingredients. Examples of manufacturing/processing activities are cutting, peeling, 
trimming, washing, waxing, eviscerating, rendering, cooking, baking, freezing, cooling, 
pasteurizing, homogenizing, mixing, formulating, bottling, milling, grinding, extracting juice, 
distilling, labeling, or packaging." To constitute "manufacturing/processing," an activity, 
including "packaging" must involve some sort of change to or manipulation of the food. Thus, 
as discussed in response to Comment 67 in the Final Rule preamble, "simply placing produce 
into containers (such as clamshells, baskets, mesh bags, or plastic bags) [without altering or 
manipulating food] is more akin to packing, even if the containers are ultimately received by the 
consumer." Under section 1.328, a farm may engage in this packing activity as long as all of the 
9  Contains Nonbinding Recommendations 
food involved is grown, raised, or consumed on that farm or another farm under the same 
ownership. Accordingly, a farm that washes, sanitizes, grades and sizes, and then places the 
eggs in cartons is not "manufacturing/processing" because the activity does not involve altering 
the form of the food. However, if the inline facility receives eggs from another farm that is not 
under the same ownership, the farm exemption is lost and the inline facility must establish and 
maintain records with respect to eggs it receives from other farms. 
In addition, if activities other than those identified in the question (washing, sanitizing, grading, 
sizing and placing eggs in cartons) are taking place on the farm, for example in-shell 
pasteurization, the inline facility does not fall within the farm exemption as it is now 
manufacturing/processing the eggs. The farm exemption only extends to 
manufacturing/processing activities when all of the food used in such activities is consumed on 
that farm or another farm under the same ownership (section 1.328). 
 4.4 Q: [Added June 2006] Is an egg "central processing plant" located in a separate location 
from the "off-line" farm required to establish and maintain records? 
A: Yes. The "central processing plant" located off the farm is required to establish and maintain 
records of the non-transporter and transporter immediate previous sources under section 1.337 
and the non-transporter and transporter immediate subsequent recipients under section 1.345. 
Although the question refers to the facility as a "processing" plant, we have determined that the 
activities taking place are more akin to packing, as discussed above in question 4.3 of this 
document. The farm definition extends to facilities located on the farm that pack or hold food if 
all food packed or held is grown, raised, or consumed on that farm or another farm under the 
same ownership. Because section 1.328 defines "farm" in terms of its location ("one general 
physical location"), the packing activities must be co-located with the activities associated with 
growing food or raising animals in order to be exempt. 
 4.5 Q: [Added September 2006] I am a hay grower that will bale some of my hay and make 
ensilage out of the rest. What does FDA consider as "harvesting" as it is used in the definition of 
"farm" in section 1.328? Does drying my hay naturally in the field versus drying my baled hay 
artificially with blower fans in my barn prior to storage make a difference in whether I am 
considered exempt as a farm under the Final Rule? 
A: FDA interprets harvesting as the activities traditionally performed during the removing of a 
crop from the field through the safe storage of the crop. As stated above in response to question 
4.2, the harvesting of hay includes the cutting, drying, baling and storage of the hay. Whether 
the hay is dried naturally in the field or on racks in front of fans before being placed in storage 
does not change the status of a "farm" since the harvesting of hay requires proper drying before 
it can be safely stored. However, if you were to remove the hay from storage and chop the hay 
to make hay cubes to sell, then establishment and maintenance of records for the hay cubes 
would be required for this activity (but not the growing and harvesting of the hay) since this 
activity is considered manufacturing/processing of the already stored hay. Further, the ensiling 
process of cutting grass off the field and blowing the wet grass into a silo for preservation is a 
traditional harvesting activity that falls within the farm exemption. 
 4.6 Q: [Added September 2006] If I sell hay that I grow on my farm to another farm, am I 
subject to the establishment and maintenance of records provisions in the Final Rule? 
10  Contains Nonbinding Recommendations 
A: No, you do not have to establish and maintain records for the hay you grow and sell to 
another farmer or to a direct consumer such as a person that owns pleasure horses. Harvesting 
also includes releasing the crop to another person. Thus, activities associated with the selling of 
the crop, such as transportation of the hay by the farmer either directly or through a third-party 
transporter to a buyer is included within the farm exemption. As discussed in the response to 
Comment 67 in the Final Rule preamble, a farm that transports its products from the field does 
not cease to be a "farm" because such transportation is considered incidental to traditional 
farming activities. However, if you purchase hay from another farm under different ownership 
to resell, then you have to establish and maintain records related to the hay you receive and 
release in accordance with sections 1.337 and 1.345, respectively. 
For example, if Abe, a farmer, grows hay on his farm and feeds it to his livestock on that farm 
or another farm under the same ownership, he does not need to establish and maintain records. 
Or, if Abe sells the hay that he grew and harvested to Betty who has another farm for her use to 
feed livestock on her farm, neither Abe nor Betty have to establish and maintain records 
regarding the hay, provided each meets the definition of farm in section 1.328. On the other 
hand, if Abe sells his hay to Charlie, who runs a brokerage company and has bought the hay to 
resell it, then Charlie must establish and maintain records of the hay he receives and releases in 
accordance with section 1.337 and 1.345, respectively. For example, if Abe sells his hay to 
Charlie, who in turn sells it to Betty to feed her cattle, Charlie must establish and maintain 
records to identify the immediate previous sources (including Abe) and immediate subsequent 
recipients (including Betty) of the hay. Brokering hay is not a normal farm activity and Charlie 
would be considered a distributor of the hay subject to the rule. Under section 1.326(a), persons 
who manufacture, process, pack, transport, distribute, receive, hold, or import food in the 
United States are subject to the regulations in subpart J, unless they qualify for one of the 
exclusions in section 1.327. Abe and Betty do not need to establish and maintain records as long 
as they meet the definition of a farm. 
 4.7 Q: [Added September 2006] Does a farm have to keep records of who transported hay that 
was bought or sold? 
A: No. If the hay was transported by the farm/seller (Abe in the example in 4.6A) or farm/buyer 
(Betty), no transportation records are needed. Trucks used as part of a farm operation fall within 
the definition of farm in section 1.328, and are exempt from all of the requirements in Subpart J. 
However, if the hay was transported by a person that does not meet the definition of a farm, 
such as commercial trucking operation, then the transporter must establish and maintain records 
as provided in section 1.352. 
 4.8 Q: [Added September 2006] I mix my corn and haylage with a commercial protein 
supplement to feed my cattle. Do I need to keep records? 
A: No. The definition of farm, section 1.328, includes "facilities that manufacture/process food, 
provided that all food used in such activities is consumed on that farm or another farm under the 
same ownership." As discussed in the response to Comment 67 in the Final Rule preamble, to 
ensure that FDA is fulfilling Congress's intent to exempt "farm," FDA revised the definition of a 
farm in the Final Rule to include manufacturing/processing activities as long as all food used in 
such activities is consumed on that farm. Therefore, establishment and maintenance of records 
is not required for this on-farm mixed feed as long as the mixture is fed to animals on the farm 
11  Contains Nonbinding Recommendations 
or another farm under the same ownership. However, records would need to be kept if the 
mixed feed is released to someone other than a farm under the same ownership. Mixing the corn 
and haylage with a commercial supplement constitutes manufacturing/processing and falls 
outside the traditional farming activity once the feed is distributed to anyone other than another 
farm under the same ownership. 
5. Restaurants 
5.1 Q: Some retail stores have sushi makers on site.  The sushi maker prepares sushi in a store 
and sells it through that store. The retailer never actually owns the sushi, but only retains a 
portion of the net amount received from the sushi sales. In this case, is the retailer required to 
keep any records regarding the sushi? 
A: No. Persons who manufacture, process, pack, transport, distribute, receive, hold, or import 
food in the United States are subject to this regulation, in accordance with section 1.326(a). 
Section 1.328 defines a nontransporter as a person who owns food or who holds, manufactures, 
processes, packs, imports, receives, or distributes food for purposes other than transportation. In 
the above example, both the owner of the food (the sushi maker) and the retailer who controls 
the surrounding facility are nontransporters subject to this regulation with respect to the sushi, 
unless an exemption applies. In this case, the sushi is prepared and sold directly to consumers 
for immediate consumption, in accordance with the definition of "restaurant" in section 1.328. 
As discussed in the response to Comment 37 in the Final Rule preamble, all sales of food 
prepared and sold directly to consumers for immediate consumption fall under the restaurant 
exemption, regardless of whether the seller is a retailer or another type of entity. Therefore, in 
accordance with section 1.327(b) the retailer and sushi maker are excluded from all the 
requirements of this regulation with respect to the food (sushi) prepared and sold directly to 
consumers. 
 5.2 Q: [Added June 2006] A large company oversees the ordering of supplies, possible 
warehousing, and distribution of ingredients that are ultimately sent to a fast-food restaurant it 
owns to be manufactured/processed into a product for immediate consumption by the consumer. 
Does the restaurant exemption apply to the supplier/warehouser/distributor activities conducted 
by the company? 
A: Persons who manufacture, process, pack, transport, distribute, receive, hold, or import food 
in the United States are subject to the regulations in this subpart, unless one of the exclusions in 
section 1.327 apply. If you conduct more than one type of activity at a location, you are required 
to keep records with respect to those activities covered by subpart J, but are not required to keep 
records with respect to activities that fall within one of the exclusions in section 1.327 (section 
1.326(a)). The restaurant exemption under section 1.327(b) applies to the facility that prepares 
and sells food directly to consumers for immediate consumption. This exemption does not 
extend to the supplier/warehouser/distributor level even though they are all part of the same 
company. Activities at the supplier/warehouser/distributor are not commonly thought of as 
activities carried out at a restaurant, which prepares and sells food for immediate consumption. 
As stated, persons who distribute, receive, or hold food are subject to these regulations. 
However, a vertically integrated company, as described in the responses to Comments 13 and 
71 in the Final Rule preamble, is defined by continuous possession of an article of food. Once a 
person subject to this rule receives food and keeps information on its immediate previous 
12  Contains Nonbinding Recommendations 
sources, that person does not need to keep additional records until it releases the food to another 
person. In this case, because the downstream portion of the company (the restaurant) is exempt, 
only records to identify the immediate previous transporter and nontransporter of food that 
comes into the company must be established and maintained. 
Further, a company is no longer integrated if the food passes out of its control and is released to 
another person before returning to the company's possession. For example, if an independent 
transporter takes possession of the food in order to transport it between two facilities owned by 
the same company, the company must establish and maintain records identifying the transporter 
and nontransporter immediate previous sources and immediate subsequent recipients. 
6. Retail Facilities 
6.1 Q: Is a retail store with an in-store bakery also a manufacturing facility that must track 
ingredients and lot numbers for its baked goods manufactured on-site? 
A: No. Section 1.328 defines a restaurant as a facility that prepares and sells food directly to 
consumers for immediate consumption. The bakery in a retail store that prepares and sells food 
in the retail store is considered a restaurant for the purpose of this regulation. Section 1.327 
excludes a restaurant from all requirements of this regulation, including the requirement to 
establish and maintain records of all food it receives (section 1.337). Therefore, the retail store 
does not need to track ingredients and lot numbers for the baked goods manufactured on-site. 
6.2 Q: A retailer buys bulk packs of food (e.g., fish) and prepares it for resale in smaller 
quantities. Is the retailer considered a packager? If the food is placed in a new container, must 
the retailer track the packaging? 
A: Section 1.327(e) states that a retail food establishment may pack food and retain its retail 
designation if the annual value of food sold directly to consumers is equal to more than half of 
its total sales. If this condition is met, the establishment still must establish and maintain records 
of the receipt of the finished container (packaging) that contacts the fish in accordance with 
section 1.327(k), but is excluded from the requirement in section 1.337(a)(4) to record the lot or 
code number or other identifier of the packaging. Section 1.327(d) excludes a retail 
establishment from the requirement to establish and maintain records for the food it releases, 
including the source of the finished container in which the establishment has placed the food, 
for those products it distributes directly to consumers. 
6.3 Q: Some retail stores have sushi makers on site. The sushi maker might prepare sushi in one 
store and sell it through both that store and other stores. The sushi maker handles all 
transportation, and the retailer does not own the sushi, but only retains a portion of the net sales. 
Would the sushi maker be considered a central kitchen (i.e., not a restaurant) with respect to the 
sushi that is sold in other stores? 
A: No. The sushi remains in the continuous possession of the sushi maker (including transport 
between stores) until it is sold to consumers for immediate consumption. Therefore, the sushi 
maker functions as an integrated company that prepares and sells food directly to consumers 
and is considered a restaurant for the purpose of this regulation. 
13  Contains Nonbinding Recommendations 
6.4 Q: In a central kitchen in one of its stores, a retailer makes a prepared salad or bakery item 
that it distributes for sale at multiple stores in the region. Is lot number tracking for ingredients 
and finished products required? 
A: No, provided all of the multiple stores are under the same ownership as the central kitchen. 
In this situation, the retailer prepares the salad or bakery item and retains that food within its 
person until it is sold directly to consumers. This retailer is exempt as a restaurant from the 
requirements of this regulation in accordance with section 1.327, for the food it prepares and 
sells directly to consumers for immediate consumption. If, however, the retailer's central kitchen 
is preparing and distributing the food to other retailers with different ownership, the retailer's 
activities would not qualify for the restaurant exemption as to those transactions and would be 
subject to this regulation for that food. 
6.5 Q: Some retail stores donate old produce to pig farms for free. The donated produce is eaten 
by the animals and reduces the waste produced by the retail store. However, the farms are not 
considered non-profit organizations. Does this mean that each store that donates in this way will 
have to document the donations? 
A: Similar to question 1.6 above, FDA intends to consider exercising enforcement discretion 
regarding records of food waste released by a facility to a pig farm for consumption by animals 
without further manufacturing/processing. 
6.6 Q: A retail establishment releases food to a business. Damaged goods may be sold to third-
party reclamation centers or salvagers for eventual resale to consumers. The retail establishment 
is aware that the nontransporter immediate subsequent recipient in these transactions is not a 
consumer. However, there is not currently a system in place that can provide information on the 
specific foods released. Instead, generic descriptions are used (e.g., one pallet of dented cans). 
section 1.327(e) states that for retailers, the requirements in section 1.345 to establish and 
maintain records to identify the nontransporter and transporter immediate subsequent recipients 
that are not consumers applies as to those transactions only to the extent the information is 
reasonably available. The response to Comment 38 in the Final Rule preamble states that 
"information is reasonably available to you if you have a system in place to capture the 
information. FDA does not intend to require the reconfiguration of business operations." In the 
situation described above, is the retail establishment required to establish and maintain records 
of the nontransporter and transporter immediate subsequent recipients? 
A: Yes. section 1.327(e) provides: "Persons who operate retail food establishments that 
distribute food to persons who are not consumers are subject to all of the requirements in this 
subpart. However, the requirements in section 1.345 to establish and maintain records to 
identify the nontransporter and transporter immediate subsequent recipients that are not 
consumers applies to those transactions only to the extent that the information is reasonably 
available." FDA considers the information that must be "reasonably available" in this subsection 
to refer to the retailer's knowledge as to whether the recipient of the food is a consumer or a 
business; it does not exempt the retailer from keeping required records when the retailer knows 
the recipient is a business and is able to capture this information. For example, if a person 
buying deli meat from a grocery store owns the sandwich shop in the same shopping complex, 
the grocery store does not have to inquire as to whether the buyer is purchasing the meat in her 
individual capacity as a consumer, or purchasing the meat for use in her sandwich shop, nor 
14  Contains Nonbinding Recommendations 
does the store have to establish separate business accounts to capture the status of the buyer. If, 
however, the grocery store provides membership cards for buyers based on their status (e.g., one 
type of card for consumers and another type for businesses), then this information is reasonably 
available to the retail store, and records of the release of food to businesses are required. In the 
question posed above, the retail store is aware that the recipient is a business, and the salvaged 
food is sold on the basis of that understanding. The retail store does not qualify for the exclusion 
for sales to consumers for these transactions, and must establish and maintain records of the 
released food as required by section 1.345, including an adequate description of the food 
released. 
 6.7 Q: [Added November 2005] Is a retail food establishment (retail animal feed) that employs 
10 or fewer full-time equivalent employees still exempt from the requirement to establish and 
maintain records (but not the record access requirements for existing records), if they sell feed 
to a business or the feed sold is to be used in animals that will subsequently be sold as food? 
A: This establishment is exempt if it meets the definition of a retail establishment as defined in 
section 1.327(e). Section 1.327(e)(1) states that a retail establishment's primary function is to 
sell food directly to consumers, and section 1.327(e)(3) states that a retail establishment's 
primary function is to sell food directly to consumers if the annual monetary value of sales of 
food products directly to consumers exceeds the annual monetary value of sales of food to all 
other buyers. As discussed in the response to Comment 52 in the Final Rule preamble, "food 
distributed directly to consumers" includes sales of bagged feed, pet food, and feed 
ingredients/additives over-the-counter directly to consumers and final purchasers for their own 
animals, unless the feed is to be used in animals that will be sold as food or used to produce 
food for sale. If this establishment with 10 or fewer full-time equivalent employees qualifies 
according to the criteria discussed above, it is exempt as provided by section 1.327(f). 
 6.8 Q: [Added November 2005] A retail facility receives a returned food product from a 
consumer. The food product may be restocked if there is no damage or consumer complaint. Is 
the retail facility required to establish and maintain records of the receipt of the returned food? 
A: Yes. The retail facility is assuming custody and control of food released by another person, 
and must establish and maintain records of the immediate previous source as required by section 
1.337. However, FDA intends to consider exercising enforcement discretion with regard to 
section 1.345(b) if the records indicating the source of the incoming returned food refers to 
"customer return" or the equivalent as the source. 
7. Persons Under the Exclusive Jurisdiction of USDA (Reserved) 
 
8. Food Contact Materials 
8.1 Q: The final regulation requires the person placing a food directly into contact with its 
finished container to establish and maintain records on the container that contacts the food. 
Since the definition of food includes food ingredients, this requirement appears to apply equally 
to anyone placing any food ingredient into any container as well as commercial packaging 
operations. This encompasses activities such as a chemical plant placing bulk oil or glycerin 
into a railroad tank car, placing grain into a grain silo, loading product into drums, loading a 
tank truck, or placing vegetables into a pick-up truck, as well as more traditional food 
15  Contains Nonbinding Recommendations 
packaging operations such as filling a bottle of ketchup or canning tomatoes. Does "finished 
container" apply to every container at every step in the chain of custody? 
A: No. A "finished container" as described in 21 CFR 1.27(k) is the packaging in which the 
finished food will be received by an individual consumer (not by a business). 
8.2 Q: A transporter carries items that may or may not become food contact substances (e.g., 
polyethylene bags). Is the transporter subject to the records access requirements? 
A: [Revised February 2012] In accordance with section 1.327(j), all persons who manufacture, 
process, pack, transport, distribute, receive, hold, or import food contact substances other than 
the finished container that directly contacts food are excluded from all recordkeeping 
requirements except sections 1.361 and 1.363. Under these provisions, any existing relevant 
records must be made available to FDA in response to an official request, as soon as possible, 
not to exceed 24 hours from the time of FDAs request, as required in sections 1.361 and 1.363. 
If a transporter can reasonably expect that some or all of its cargo may become food contact 
substances, then that transporter must ensure that it has the capability to provide access within 
the specified time limit to records it normally maintains as a matter of business practice and that 
may be within the scope of a records access request by FDA.  
8.3 Q: Does a firm that collects reusable containers after use and then releases them to another 
firm that places food in the containers, such as a bottling firm that refills the bottles with water, 
have to establish and maintain records under this regulation? 
A: No. Section 1.327(k) provides that all persons who manufacture, process, pack, transport, 
distribute, receive, hold, or import the finished container that directly contacts food and do not 
themselves place the food in contact with the container are excluded from the requirements of 
this regulation, except sections 1.361 and 1.363. However, the firm placing food in contact with 
the reusable containers does have to establish and maintain records of the received containers 
that identify the first firm that is collecting the reusable containers as the nontransporter 
immediate previous source. 
 8.4 Q: [Added November 2005] During a firm's manufacturing process, the food may come in 
contact with many substances and materials such as chemically treated water (e.g., chlorine, 
anti-foam agent), steam which is generated from chemically treated boilers, gases, gaskets, 
mixing vessels, and tote liners which temporarily hold the product. Would these substances and 
items be considered ingredients or food contact materials subject to this regulation? 
A: FDA notes that there are a wide variety of processing aids and other incidental additives that 
are used in the manufacture of food. If a substance is intended to have a technical effect in the 
food to which it is added, it is considered a food ingredient subject to this regulation, as 
discussed in the response to Comment 96 in the Final Rule preamble. A manufacturing firm 
must therefore establish and maintain records as required by section 1.337 for the receipt of 
these substances. In addition, the firm must establish and maintain records for the food it 
releases that include the reasonably available information on the specific source of every 
ingredient (including processing aids and incidental additives) used to make every lot of the 
finished food, as required by section 1.345(b). However, persons placing food in contact with 
containers or surfaces other than the finished container that directly contacts the food or using 
16  Contains Nonbinding Recommendations 
other food contact substances do not have to establish and maintain records for the food contact 
substances and are subject only to the requirements in sections 1.361 and 1.363 for existing 
records with respect to those food contact substances. 
 8.5 Q: [Added November 2005] Within a retail establishment, are the pots and pans used in 
food preparation in the deli, produce plastic bags, saran wrap, foam plates and other such 
materials subject to this regulation as food contact items? 
A: No. A facility that prepares and sells food directly to consumers for immediate consumption 
is considered a restaurant and is exempt from all the requirements discussed above, in 
accordance with section 1.327(b). In addition, a facility that is a retail establishment only is 
required to establish and maintain records for those food contact substances it receives that 
serve as finished containers for the food it releases. Section 1.327(k) states that persons who 
place food directly in contact with its finished container are subject to all of the requirements of 
this regulation as to the finished container that directly contacts the food. As explained in 
question 8.1 of this document, the finished container is the packaging in which the food will be 
received by an individual consumer. Food contact substances other than the finished container 
that directly contacts food are excluded from all the requirements of this regulation except 
sections 1.361 and 1.363, as provided in section 1.327(j). Accordingly, those handling food 
contact substances will need to ensure they have procedures in place to satisfy the record access 
timeframes established in section 1.361. 
 8.6 Q: [Added November 2005] Bananas in transport from a distribution center to a retail store 
are covered by bags. The bags are removed before the bananas are sold to the consumer. Does 
the store or distribution center have to establish and maintain records for the bags? 
A: No. Food contact substances other than the finished container that directly contacts food are 
excluded from all the requirements of this regulation except sections 1.361 and 1.363, in 
accordance with section 1.327(j). As explained in question 8.2 of this document, the finished 
container is the container in which the food will be received by an individual consumer. The 
bags contact the food, but are not present when the consumer receives the food. 
 8.7 Q: [Added June 2006] A manufacturing firm uses delicatessen (e.g., wax) paper in its 
preparatory work. For example, a sheet pan is placed on the counter, the delicatessen paper goes 
over the pan, the food is prepared on top of the delicatessen paper and the item is then frozen. 
Next the food is removed from the paper and wrapped. At that point, there is no other contact 
with the paper. Does the manufacturing firm have to establish and maintain records of the paper 
that is used in every day procedures? 
A: No. Section 1.327(j) excludes from all of the requirements of this regulation, except sections 
1.361 and 1.363 (record availability requirements for existing records and prohibited act 
provisions), food contact substances other than the finished container that directly contacts the 
food. The finished container is the container in which the food will be received by an individual 
consumer. The delicatessen paper contacts the food, but is not present when the consumer 
receives the food. 
9. Persons Who Manufacture, Process, Pack, Transport, Distribute, Receive, Hold, or 
Import Samples 
17  Contains Nonbinding Recommendations 
9.1 Q: Samples are employed in a wide variety of ways within the business community and 
move between facilities in many ways, based largely on how many samples are involved. 
Larger quantities of samples are more likely to be mailed, shipped by a shipping service, or 
shipped by a carrier. Smaller quantities of samples are more likely to be hand carried, 
transported in an employee's personal vehicle, or even moved by taxi cab. Do businesses have 
to establish and maintain records for all samples, regardless of use or mode of transport? 
A: Yes. As discussed in the response to Comment 32 in the Final Rule preamble, food samples 
intended for consumption (including consumption via test marketing, tasting at trade shows, and 
promotional marketing) are subject to this regulation. Accordingly, records must be established 
and maintained identifying the immediate previous sources and immediate subsequent 
recipients of the samples in accordance with sections 1.337 and 1.345. However, section 
1.327(d) excludes persons who distribute food directly to consumers from the requirements in 
section 1.345 to establish and maintain records to identify the nontransporter and transporter 
subsequent recipients as to those transactions. In accordance with this subsection, a firm does 
not need to establish and maintain records for release of samples as long as the samples are 
released directly to an individual consumer. For the purpose of this regulation, FDA considers a 
company that transfers food samples to its own employees for personal consumption to be 
distributing food directly to consumers as specified in section 1.327(d). Conversely, distribution 
of samples and other feed to a farm that is raising animals for food or distribution of samples 
and other feed to contract farms is not considered to be releasing food directly to consumers. In 
addition and as discussed in the response to Comment 70 in the Final Rule preamble, a person 
(including an individual partnership, corporation, or association) who distributes or receives 
food for purposes other than transportation is not a transporter, even if the person also transports 
food. Therefore, if samples are transported by an employee of either the manufacturer or 
recipient firm, the transporter records specified by section 1.352 are not required and only those 
records required of non-transporters are required. 
9.2 Q: A firm manufactures metal and plastic closures for food products. The firm's research 
and development laboratory may receive food packed by a customer for performance testing by 
the laboratory. Excess food packages are distributed to the firm's employees at no charge. Is the 
laboratory subject to this regulation? 
A: Yes. The laboratory must establish and maintain records of the receipt of food (including 
samples of food) if that food will be consumed, in accordance with section 1.337. However, 
section 1.327(d) excludes persons who distribute food directly to consumers from the 
requirements in section 1.345 to establish and maintain records of the nontransporter and 
transporter immediate subsequent recipients as to those transactions. For the purpose of this 
regulation, a company that transfers food samples to its own employees for personal 
consumption is considered to be distributing food directly to consumers as specified in section 
1.327(d). 
9.3 Q: Customers frequently ask manufacturers for laboratory samples of food ingredients for 
evaluation. It is unknown whether the company requesting samples will produce an edible food 
product. Must records be established and maintained for transfer of the samples sent to these 
immediate subsequent recipients? 
18  Contains Nonbinding Recommendations 
A: As discussed in the response to Comment 32 in the Final Rule preamble, food samples 
intended for consumption (including consumption via test marketing, tasting at trade shows, and 
promotional marketing) are subject to this regulation. Records must be established and 
maintained if there is a reasonable expectation that the ingredient samples will be used in a food 
product that will be consumed. If it is unclear whether the samples will be incorporated into 
food that is consumed, the ingredient manufacturer may wish to obtain this information from 
the recipient as a matter of business practice. 
9.4 Q: If samples are intended for consumption by a laboratory animal (e.g., a rat) are they 
exempt from this regulation? 
A: FDA intends to consider exercising enforcement discretion with regard to records for 
samples if the samples are consumed by animals that: (1) are used for research purposes only, 
(2) are not used for food, and (3) remain under the control of the laboratory. 
9.5 Q: A supermarket headquarters building receives samples that are tested. The testing may 
include tasting. Is recordkeeping required to track receipt of these samples? 
A: Yes. If samples will be consumed by humans for testing purposes after receipt, the firm must 
establish and maintain records of the nontransporter and transporter immediate previous sources 
of the samples as required by section 1.337. 
9.6 Q: If a manufacturing firm provides one or two samples of an item to a buyer for a retail 
firm for immediate consumption by that buyer, does this regulation require recordkeeping? 
A: In general, yes. The manufacturing firm must establish and maintain records of the 
immediate subsequent recipient of the samples as required by section 1.345. However, if the 
transfer occurs in a venue where commercial buyers and members of the general public are both 
present and a specific recipient cannot be readily distinguished as belonging to one or the other 
of those groups (e.g., at a trade show open to both industry and the public where a buyer 
consumes one or two samples and does not provide his or her corporate affiliation or otherwise 
establish commercial contact), FDA intends to consider exercising enforcement discretion 
regarding establishment of records of that specific transfer. 
9.7 Q: A research and development laboratory creates samples and ships them to a customer 
who consumes them. Does the laboratory have to establish and maintain records of incoming 
ingredients and outgoing samples? 
A: Yes. The laboratory must establish and maintain records of incoming ingredients intended 
for use in samples that will be consumed, including records of the transporter and 
nontransporter immediate previous sources, as specified by section 1.337. The laboratory must 
also establish and maintain records of outgoing samples that will be consumed, including 
records of the transporter and nontransporter subsequent recipients, as specified in section 
1.345, unless the recipients are individual consumers. For the purpose of this regulation, a 
company that transfers food samples to its own employees for personal consumption is 
considered to be distributing food directly to consumers as specified in section 1.327(d). 
9.8 Q: If one firm engages a second firm to place samples in different geographic locations that 
are then given to consumers for testing, what records need to be maintained? 
19  Contains Nonbinding Recommendations 
A: As discussed in the response to Comment 32 in the Final Rule preamble, food samples 
intended for consumption (including consumption via test marketing and promotional 
marketing) are subject to this regulation. Therefore, both firms must establish and maintain 
records with respect to the transfer of samples between them, in accordance with sections 1.337 
and 1.345. However, section 1.327(d) excludes persons who distribute food directly to 
consumers from the requirements in section 1.345 to establish and maintain records to identify 
the nontransporter and transporter subsequent recipients as to those transactions. Therefore, the 
second firm need not establish and maintain records of release of the samples if they are 
distributed directly to individual consumers. 
 9.9 Q: [Added November 2005] Are hospitals and doctors' offices required to establish and 
maintain records of receipt and release of food samples? 
A: Yes. Hospitals and doctors' offices must establish and maintain records for the receipt of 
food, including food samples, as required by section 1.337. However, section 1.327(d) states 
that if the food is released directly to individual consumers, no record of the release is required. 
 9.10 Q: [Added November 2005] A firm assembles panels (consisting of employees) to assess 
the quality of potential new products. Organoleptic assessment is done by placing small 
quantities in the mouth; in most cases the sample is not swallowed. Must records be established 
and maintained for this activity? 
A: The firm does not have to establish and maintain records when it receives samples that will 
not be consumed. The response to Comment 32 in the Final Rule preamble states that samples 
used only for analysis are exempt from this regulation, and that analysis may include 
organoleptic examination. However, in the above example, the food is placed in the mouth, 
which would include consumption or absorption of some part of the sample. Accordingly, the 
exemption does not apply and the firm must establish and maintain records of the receipt of the 
samples in accordance with section 1.337. The firm does not have to establish and maintain 
records of transfer of the samples to its own employees even if consumption occurs, as FDA 
considers this distribution directly to consumers, which is subject to the exclusion in section 
1.327(d). 
 9.11 Q: [Added June 2006] A firm manufactures bread and pizza items (including sauce 
formulations) and during formulation, employees constantly taste the product and adjust the 
formulations until they are right. We also have our colleagues taste the items to obtain their 
opinions. This could happen as often as 50 times per day or more. Do we have to establish and 
maintain records to monitor this or would the requirement only apply to people outside of our 
company? If this does apply to our company, can we have our employees sign a waiver as a 
standard procedure before entering our laboratory, which would allow them to taste items that 
we are cooking/baking without the need for more significant and time consuming data entry? 
A: As discussed in response to Comment 32 in the Final Rule preamble, food samples intended 
for consumption (including consumption via test marketing and promotional marketing) are 
subject to this regulation. However, section 1.327(d) excludes persons who distribute food 
directly to consumers from the requirements in section 1.345 to establish and maintain records 
to identify the nontransporter and transporter subsequent recipients as to those transactions. For 
the purpose of this regulation, a company that transfers food samples to its own employees for 
20  Contains Nonbinding Recommendations 
personal consumption is considered to be distributing food directly to consumers as specified in 
section 1.327(d). 
10.  Persons Who Distribute Food Directly to Consumers 
10.1 Q: A combined airline and caterer receives foods and food ingredients with production 
codes and expiration dates. Is the company expected to track each product by code number 
through the kitchen to the customer? For example, if the company receives a gallon of olive oil, 
must that oil be linked to each recipe where it is used and through the facility to the customer by 
lot number? 
A: No. In general, as discussed in the response to Comment 76 in the Final Rule preamble, a 
caterer for interstate conveyances does not qualify for the restaurant exemption defined in 
section 1.328 and must comply with both sections 1.337 and 1.345. Records established and 
maintained in accordance with section 1.345 must include the information reasonably available 
to the caterer to identify the specific source of each ingredient used to make every lot of finished 
product. However, an airline that caters its own flights is vertically integrated (as long as 
ownership of the two companies is the same and the food is not transported independently). As 
discussed in the response to Comment 13 in the Final Rule preamble, a vertically integrated 
company does not have to establish records of internal transfers of food. In accordance with 
section 1.327(d), the airline is also excluded from the requirement to establish and maintain 
records of the immediate subsequent recipient when the food is ultimately released because it is 
being distributed directly to the consumer. However, if the airline were to prepare finished food 
products and sell them to another airline, the firm would be required to establish and maintain 
records for each food released to the other airline, including both the specific source of each 
ingredient used to make every lot of the finished food product (to the extent that the information 
is reasonably available) and lot numbers or other identifiers (to the extent they exist). 
 10.2 Q: [Added November 2005] (Amended 10.2 from 1st Edition) A bottled water company 
delivers to businesses, and the water is consumed by employees at these businesses. Is this 
considered delivery to consumers with respect to recordkeeping obligations? 
A: No. Section 1.327(d) only excludes persons who distribute food directly to individual 
consumers from the requirements in section 1.345 to establish and maintain records. This 
subsection expressly states that the "term 'consumers' does not include businesses." Therefore, 
the bottled water company is required to establish and maintain records of its water deliveries to 
businesses. The exemption in section 1.327(n) for persons who receive or hold food on behalf 
of specific individual consumers is not applicable because in this case the business is the 
purchaser and a party to the transaction with the bottled water company, and is not simply 
holding the bottled water for a consumer purchaser. However, the bottled water company is 
performing mixed nontransporter activities, similar to the example discussed in question 37.1 of 
this document: (1) it is manufacturing, processing, and packing its products; and (2) it is 
distributing these products to businesses. In situations where the bottled water company is 
placing its products directly in the location where they will be consumed, it is functioning as a 
retailer, similar to a vending machine supplier or a direct store delivery operation. Both of these 
situations directly parallel the example in question 37.1. In all cases, the bottled water company 
must establish and maintain records for each of these two distinct functions. As required in 
sections 1.337 and 1.345, the bottled water company must establish and maintain records of all 
food (water and finished containers that will be placed in contact with the water) it receives, and 
21  Contains Nonbinding Recommendations 
all water it releases to its distribution or warehouse location, including lot number or other 
identifier (to the extent this information exists) as required in section 1.345(a)(4). The 
company's distribution or warehouse facility must record the release of water to businesses as 
required in section 1.345, but is not required to record lot numbers. Each client business is also 
a nontransporter who is subject to these regulations because it has custody or control of the 
food. Accordingly, it must establish and maintain records of all water it receives from the 
bottled water company in accordance with section 1.337, but it is not required to record lot 
numbers, as it is not manufacturing, processing or packing the food. 
 10.3 Q: [Added November 2005] A firm may give a selection of food products from its 
inventory to employees as gifts. Must records be established and maintained for this activity? 
A: No. For the purpose of this regulation, the firm is distributing food directly to consumers and 
falls under the exclusion in section 1.327(d). 
 10.4 Q: [Added November 2005] An airline loads food in a foreign country and it is served to 
passengers in United States airspace. Is the airline required to establish and maintain any 
records with respect to the food? 
A: No. The Final Rule only applies to manufacturing, processing, packing, holding, 
transporting, distributing, receiving and importing activities that occur within the U.S. In the 
above example, the airline receives the food in a foreign country and thus, those activities are 
not subject to the rule. Although the distribution of food occurs in U.S. airspace, the distribution 
is directly to consumers and no records are required of that release, as provided in section 
1.327(d). 
 10.5 Q: [Added November 2005] A theme park may have a variety of restaurants, food stands, 
gift shops and facilities at which food is stored on its premises. Please comment on the 
applicability of the recordkeeping rule to these facilities. Can the theme park be viewed as a 
single establishment for purposes of this analysis? 
A: This question is similar to the sushi example in question 5.1. Both the theme park and the 
restaurants, food stands, and gift shops (which may be under different and perhaps multiple 
ownerships from the theme park) are subject to the rule, unless an exemption applies. The park 
has overall custody and control of the premises, while individual facilities under different 
ownership have ownership of individual articles of food and/or custody and control of the food. 
Both sets of entities are responsible for complying with this regulation, which either may do for 
the other as a matter of business practice, but legal responsibility for establishment and 
maintenance of records and for meeting the records access timeframes specified in section 1.361 
remains with both parties. The theme park (or individual entities within the park if under a 
different ownership) may qualify for the restaurant exemption provided in sections 1.327(b) and 
1.328 if sales of food it prepares and serves directly to consumers for immediate consumption 
are more than 90% of its total food sales. Alternatively, the theme park may qualify for the 
retailer partial exemption in section 1.327(e). If it does, it would have to establish and maintain 
records to identify the immediate previous sources of food it receives in accordance with section 
1.337, but it would be exempt from recording the release of food to consumers under section 
1.327(d). Similarly, the individual restaurants, food stands, and gift shops within the theme 
park, if owned by different entities, may qualify for the restaurant exemption in section 
22  Contains Nonbinding Recommendations 
1.327(b), the small retailer exemption in section 1.327(f), or the partial exemption for 
distribution to consumers in section 1.327(d). Storage of the food in connection with any of 
these facilities is considered integral to the restaurant and/or retail activities and would be 
considered part of the same activity. 
 C. Definitions (Section 1.328) 
11. General Questions (Reserved) 
 
12. Person (Reserved) 
 
13. Farm 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
14. Food 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
15. Manufacturing/Processing (Reserved) 
 
16. Nontransporter 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
17. Nontransporter Immediate Previous Source 
17.1 Q: A firm receives foreign products in an overseas container and processes them on behalf 
of the owner, the importer of record. Who is the immediate previous source? What if the 
importer of record considers the source of the product confidential commercial information? 
A: Section 1.328 defines a nontransporter as a person who owns food or who holds, 
manufactures, processes, packs, imports, receives, or distributes food for purposes other than 
transportation. Section 1.328 defines a "nontransporter immediate previous source" as a person 
that last had food before transferring it to another nontransporter and "person" as including an 
individual, partnership, corporation, and association. In the above example, both the owner of 
the food and the firm receiving the food are nontransporters subject to the Final Rule. Both are 
responsible for complying with the rule, which either may do for the other as a matter of 
business practice, but legal responsibility remains with both parties. The nontransporter 
immediate previous source is the foreign nontransporter that released the food to the owner and 
receiving firm, whether or not this information is confidential. Again, as a matter of business 
practice, the receiving firm and/or owner may choose to arrange to have another establish and 
maintain records on their behalf at the location where the food is received or at a reasonably 
accessible location that contains the confidential information, but legal responsibility for 
providing the records, including information that the importer of record considers confidential, 
within the timeframes specified in section 1.361 remains with the owner and receiving firm. 
17.2 Q: Who is the nontransporter immediate previous source of an imported food? When an 
imported food arrives at the port of entry, the importer of record is responsible for finding an 
appropriate place to store the food. If, for example, the importer places the food in a contract 
warehouse at the port of entry and that warehouse is owned by Company A but leased to 
Company B, it is not clear which company (the importer, Company A, or Company B) should 
be considered the nontransporter immediate previous source with respect to the next recipient. It 
23  Contains Nonbinding Recommendations 
seems the answer should not depend on who owns the warehouse. Since the importer of record 
is legally responsible for the food for Customs purposes, shouldn't the importer of record be the 
nontransporter immediate previous source? 
A: The response to Comment 17 in the Final Rule preamble notes that this regulation apply to 
persons who manufacture, process, pack, transport, distribute, receive, hold, or import food in 
the United States, unless the person qualifies for an exclusion in section 1.327. An importer of 
record or an initial United States recipient that is involved in one or more of the identified 
activities must establish and maintain the required records for the imported food. In this case, 
the imported food is received and held in a warehouse. If Company B has dedicated use and 
physical control of the warehouse, then the imported food is in Company B's physical 
possession. If Company A retains physical control of the leased warehouse, then the imported 
food is in Company A's possession. Section 1.328 defines a nontransporter as a person who 
owns food or who holds, manufactures, processes, packs, imports, receives, or distributes food 
for purposes other than transportation. The importer of record and the entity with physical 
possession of the food (Company B or Company A) are considered nontransporters by this 
definition. If the owner of the imported food is not the importer of record, then that owner is 
also considered a nontransporter. Section 1.328 defines a "nontransporter immediate previous 
source" as a person that last had food before transferring it to another nontransporter and 
"person" as including an individual, partnership, corporation, and association. In the above 
example, the importer of record, the person with physical possession of the food, and the owner 
(if a third party) are all nontransporters subject to the Final Rule. All are responsible for 
complying with the rule, which one may do for the other as a matter of business practice, but 
legal responsibility for establishment and maintenance of records and for meeting the records 
access timeframes specified in section 1.361 remains with all parties. If the food is further 
delivered from the warehouse, the recipient's nontransporter immediate previous source is 
whichever company (A or B) had physical control over the warehouse. 
17.3 Q: A nontransporter firm may receive a product from a vendor with multiple ship points. 
Currently the firm's systems cannot record the ship point. Is the firm required to record the 
actual ship point as the nontransporter immediate previous source, or just the contact 
information for the vendor? 
A: Section1.337(a)(1) requires a nontransporter to establish and maintain records for all food it 
receives that identify the name of the firm, address, telephone number and, if available, the fax 
number and email address of the nontransporter immediate previous source. Section 1.328 
defines "nontransporter immediate previous source" as a person that last had food before 
transferring it to another nontransporter and "person" as including an individual, partnership, 
corporation, and association. Therefore, the nontransporter firm above must provide the specific 
address and other contact information of the legal person (the vendor) that released the food to 
them but does not need to provide information regarding particular ship points of the vendor. 
17.4 Q: A supermarket receives direct store deliveries from various companies. For some of 
these companies, the actual product is manufactured by a franchisee or contractor. From a 
recordkeeping standpoint, is the nontransporter immediate previous source the brand company 
or the contractor? 
24  Contains Nonbinding Recommendations 
A: Section1.328 defines a nontransporter as a person who owns food or who holds, 
manufactures, processes, packs, imports, receives, or distributes food for purposes other than 
transportation. Section 1.328 defines a "nontransporter immediate previous source" as a person 
that last had food before transferring it to another nontransporter and "person" as including an 
individual, partnership, corporation, and association. A person who enters into a contract to 
hold, manufacture, process, pack, import, receive, or distribute food is considered a 
nontransporter, even if that person subcontracts the actual performance of the covered action to 
another entity. In the above example, both the brand company and the actual manufacturer are 
nontransporters subject to the Final Rule. Both are responsible for complying with the rule, 
which either may do for the other as a matter of business practice, but legal responsibility for 
establishment and maintenance of records and for meeting the records access timeframes 
specified in section 1.361 remains with both parties. The supermarket may identify either the 
brand company or the manufacturer as its nontransporter immediate previous source. 
 17.5 Q: [Added November 2005] A firm purchases a food ingredient from a broker who does 
not take actual possession of the food. Is the immediate previous source of the food the broker 
or the ingredient manufacturer (from whom the broker obtains the food)? 
A: The purchasing firm may identify either the broker or the ingredient manufacturer as its 
nontransporter immediate previous source in establishing and maintaining the records required 
in section 1.337. Section 1.328 defines a nontransporter as a person who owns food or who 
holds, manufactures, processes, packs, imports, receives, or distributes food for purposes other 
than transportation. A person who enters into a contract to hold, manufacture, process, pack, 
import, receive, or distribute food is considered a nontransporter, even if that person 
subcontracts the actual performance of the covered action to another entity. In this example, the 
broker enters into a contract to distribute the food and in addition may own title to the food. For 
this reason, the broker is subject to the rule and an acceptable nontransporter immediate 
previous source for the purchasing firm. 
 17.6 Q: [Added November 2005] The Prior Notice Rule requires the reporting of specific data 
elements for the shipper of the food item. FDA defines the shipper as "the owner or exporter of 
the article of food who consigns and ships the article from a foreign country or the person who 
sends an article of food by international mail to the U.S." For direct imports, is the immediate 
non-transporter the person noted as the shipper on the Prior Notice submission? 
A: The nontransporter immediate previous source for food is defined in section 1.328 as the 
person that last had food before transferring it to another nontransporter. See question 17.1 in 
this document. 
18. Nontransporter Immediate Subsequent Recipient 
FDA has addressed questions we received on this issue in the Final Rule preamble.  
19. Perishable Food (Reserved) 
 
20. Recipe (Reserved) 
 
21. Restaurant 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
25  Contains Nonbinding Recommendations 
22. Retail Facility 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
23. Transporter 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
24. Transporter's Immediate Previous Source 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
25. Transporter's Immediate Subsequent Recipient 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
 D. Do Other Statutory Provisions and Regulations Apply? (Section 1.329) 
26. General Questions (Reserved) 
 
 E. Can Existing Records Satisfy the Records Requirements? (Section 1.330) 
27. General Questions 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
 F. What Information is Required in the Records You Must Establish and Maintain to 
Identify the Nontransporter and Transporter Immediate Previous Source and 
Immediate Subsequent Recipients? (Sections 1.337 and 1.345) 
28. General Questions 
 28.1 Q: [Added November 2005] An animal food manufacturer receives commingled product 
from three different facilities and produces an animal feed finished product. The product is sold 
directly to farmers as feed, and also to subsequent animal food manufacturers who commingle it 
with other food ingredients and make a final saleable product. What information must the 
records established and maintained by the original manufacturer contain? 
A: The firm manufactures a product that is both a finished feed and a feed ingredient. As 
discussed in the response to Comment 61 in the Final Rule preamble, "food" includes food 
ingredients. For the purpose of this rule, the only difference in the record requirements therefore 
concerns the container of the product. If the manufacturer is placing the product in contact with 
a finished container in which it will be received by an individual consumer (not a business), the 
manufacturer must establish and maintain records of the receipt of the finished container in 
accordance with section 1.327(k) and must identify the specific source of the finished container 
in the record of release of the finished food as specified in section 1.345(b). With respect to all 
other ingredients incorporated in the product, the manufacturer must always establish and 
maintain records of receipt that include the information specified in section 1.337, including the 
lot or code number or other identifier if it exists. When the manufacturer releases the finished 
product, it must establish and maintain records of release to any person who is not an individual 
consumer, including farms. Although farms themselves are exempt from all requirements as 
provided in section 1.327(a), records must be established and maintained by the nontransporter 
(including the original manufacturer) and transporter immediate previous source of food 
released to farms. 
26  Contains Nonbinding Recommendations 
 28.2 Q: [Added November 2005] A firm sells byproducts from its manufacturing process, but 
the rights to a certain quantity of byproduct may be resold several times. Is the immediate 
subsequent recipient the original buyer of the byproduct, or the entity who actually is the owner 
at the time the byproduct leaves the firm's possession? 
A: The manufacturing firm may identify either the original buyer or the actual recipient as the 
immediate subsequent recipient. Similar to the response to Question 17.4 of this document, both 
the original buyer and the actual recipient are considered nontransporter immediate subsequent 
recipients, and both are responsible for complying with this regulation. 
 28.3 Q: [Added November 2005] In the course of normal business practice, packages 
occasionally break during transportation or distribution. The remaining, undamaged units are 
often repacked with other units for sale. Must records be established and maintained for this 
type of occasional repacking? 
A: Generally yes, unless an exemption applies. The Final Rule applies to persons who pack 
food, which includes repacking. Similar to the definition of "packing" in the Registration of 
Food Facilities regulation (21 CFR 1.227(b)(9)) FDA considers "packing" for purposes of this 
rule to be placing food in a container other than the finished container that directly contacts the 
food and is received by the consumer. The person repacking the food must establish and 
maintain records of the lot or code number or other identifier of the food it releases in 
accordance with section 1.345(a)(4) if the person manufactures, processes, or packs food. 
However, if the person qualifies as a retailer in accordance with section 1.327(e), that person is 
exempt from this requirement. Other persons who do not engage in manufacturing, processing, 
or packing are not required by section 1.345 to record lot numbers as part of their records, but 
still need to establish and maintain records identifying the immediate previous source of all food 
received and immediate subsequent recipient of all food released in accordance with sections 
1.337 and 1.345. 
 28.4 Q: [Added November 2005] How detailed must the record of repaired cases due to 
breakage (discussed in question 28.3 of this document) be? If a company repairs a case with one 
bottle from a previous production lot, will that company be required to trace the one bottle, as 
well as the other 11 bottles in the case, or does that one bottle become part of the production 
batch of the new repaired case? The bottle has a unique identifier on it so that the company can 
work backward; however, going forward to find where the bottle ultimately was shipped is 
difficult. 
A: The company must record the lot or code number of all food that it packs and releases. If the 
company releases a case that contains bottles with two distinct identifiers, the company should 
be able to link both identifiers to that case. See questions 32.1 and 32.4 in this document. 
 28.5 Q: [Added November 2005] A person may engage in a number of different types of 
activities (such as transporting, distributing, etc.), one of which is repacking of beverage alcohol 
products. The repacking is subject to the requirement to establish and maintain records, 
including an existing lot or code number or other identifier. Please confirm that the 
recordkeeping requirement applies only to that person's repackaging activity and does not 
extend to all of the person's activities unless those activities separately are covered by the 
recordkeeping requirement. 
27  Contains Nonbinding Recommendations 
A: The person is required to establish and maintain records for all covered activities as required 
in the Final Rule. A person both packing and performing other subsequent activities with 
respect to that food must establish and maintain records when it releases the food it has packed, 
including the lot or code number or other identifier, if it exists, unless an exemption applies. 
(e.g., see 37.1 and 37.2 in the document if the person is performing direct store deliveries.) 
 28.6 Q: [Added November 2005] Under the Act, it is our understanding that "repackaging" that 
only involves transfer of the package from one secondary container (case) to another or adding 
something to a secondary case (a promotional item) is not considered packing and therefore is 
not subject to the lot number requirements. Is this correct? 
A: No. As discussed in 28.3 above, FDA considers packing to be placing food in a container 
other than the finished container that directly contacts the food and is received by the consumer. 
The example above describes repacking and is a. covered activity subject to this regulation, 
including the lot code requirement of section 1.345(a)(4), except as discussed in question 28.3 
above. 
 28.7 Q: [Added November 2005] During the course of daily business, a wholesaler/distributor 
of wine and spirits ships both full cases and single bottles to customers. The bottles contained in 
each case box are sealed prior to receipt by the wholesaler/distributor. In the process of 
distributing individual bottles to retail customers, it is most efficient to separate these individual 
sealed bottles from their original shipment packing (case box) and combine them in separate 
boxes destined for the customer. Given that there is no contact with the actual food product in 
this process, do these types of activities change the status of a wholesaler/distributor as a non-
transporter who does not manufacture, process or pack goods as defined in sections 1.337 and 
1.345 of the Final Rule? 
A: Yes. The activity described above is considered "packing" because it involves placing food 
in a container other than the finished container that directly contacts the food and is received by 
the consumer. In the example described above, the covered entity is subject to the lot code 
requirement of section 1.345(a)(4) with respect to food that is repacked, if a lot or code number 
or other identifier exists for that food. 
 28.8 Q: [Added November 2005] Is the status of a wholesaler/distributor as a non-transporter 
who does not manufacture, process or pack goods as defined in sections 1.337 and 1.345 of the 
Final Rule changed if that wholesaler/distributor combines two sealed products into one box in 
order to create a promotional item? If a wholesaler/distributor contracts with a third party to 
repack these sealed products, does that contract change its status as a non-transporter who does 
not manufacture, process or pack goods? Similarly, does the status of a wholesaler/distributor 
change in the event that they received a product packed for promotional purposes (i.e., a holiday 
packaging outer box) and that wholesaler/distributor is required to remove the sealed bottle 
from this holiday packaging in order to sell it? 
A: If a wholesaler or distributor packs sealed food products that entity is also a packer and must 
establish and maintain records that include the lot or code number or other identifier of the 
packed food it releases as required in section 1.345, if that information exists. If the wholesaler 
or distributor releases the sealed food products to a third party for packing, that third party is a 
packer subject to this regulation who must establish and maintain records of the food it receives 
28  Contains Nonbinding Recommendations 
and releases, including the lot or code number or other identifier of the food if that information 
exists. A wholesaler or distributor who only unpacks food and does not repack it is not 
considered a packer with respect to this regulation. 
 28.9 Q: [Added June 2006] Warehouse distribution facilities typically receive various food 
products on pallets, break down the incoming pallets, and prepare outgoing pallets comprised of 
various food products to meet customers' orders. For example, a warehouse may receive 5 
pallets from separate sources, each containing 100 cases of only one food product and compile a 
new pallet for shipment to a customer that contains 20 cases of each of the 5 food products. Are 
warehouse distribution facilities required to track the lot or code numbers or other identifiers 
when establishing and maintaining records of the immediate previous sources and immediate 
subsequent recipients for this scenario? 
A: FDA generally considers a warehouse distribution facility that simply breaks down a pallet 
of food and reconstitutes a new pallet to meet a customer's order to be engaged in a typical 
distribution activity. Therefore, for purposes of the lot code requirement, FDA intends to 
consider exercising enforcement discretion in this circumstance. This question underscores the 
differences between "packaging" [when used as a noun], "packaging" [when used as a verb], 
and "packing." 
  Section 1.328 of the Final Rule defines "packaging" [noun] as "the outer packaging of 
food that bears the label and does not contact the food. Packaging does not include food 
contact substances as they are defined in section 409(h)(6) of the act (21 U.S.C. 
348(H)(6))."  
  Similar to the definition of "packaging" [verb] in the Registration of Food Facilities 
regulation (21 CFR 1.227(b)(8)), FDA considers "packaging," when used as a verb for 
purposes of the recordkeeping rule, to be "placing food into a container that directly 
contacts the food and that the consumer receives[,]" which is a 
manufacturing/processing activity. See e.g., 21 CFR 1.227(b)(6).  
  Also, similar to the definition of "packing" in the Registration of Food Facilities 
regulation, (21 CFR 1.227(b)(9)), FDA considers "packing" for purposes of the 
recordkeeping rule to be "placing food in a container other than packaging the food" - 
i.e., placing the food into a container other than the finished container that directly 
contacts the food and is received by the consumer. However, for purposes of the lot code 
requirement in sections1.337(a)(4) and 1.345(a)(4), FDA intends to consider exercising 
enforcement discretion in certain circumstances during which food is placed in 
containers that do not contact the food and that are not received by consumers.  
For example, a manufacturer typically places cereal into a plastic liner, which then is placed by 
the manufacturer or another person into a cardboard box that has the label information on it. In 
this instance, the manufacturer's placement of the cereal into the plastic liner is a "packaging" 
[verb] activity; the liner is considered a food contact substance under the act. The placement of 
the plastic liner into the cardboard box is a "packing" activity; the cardboard box with the label 
is considered the cereal's "packaging" [noun]. If the individual cereal boxes are placed into a 
larger box for sale to consumers (e.g., 24 single serving boxes sold together in a larger box at a 
warehouse club), placing the single boxes into the larger box also is considered "packing," and 
29  Contains Nonbinding Recommendations 
the lot number requirements apply. If, however, the individual cereal boxes are placed into a 
larger box for ease of shipment, and upon receipt by the retailer, are removed from the larger 
box before sale to the consumer, FDA will consider exercising enforcement discretion regarding 
the lot code requirement because FDA considers placing the food into the larger box a part of 
the transportation and distribution process. Similarly, FDA would consider exercising 
enforcement discretion regarding the lot code requirement if the cereal boxes were placed on a 
pallet as this is part of the transportation and distribution process. 
As explained in question 28.8 in this guidance, if a wholesaler or distributor packs or repacks 
food products, that entity is also a packer (it is engaged in mixed activities) and it must establish 
and maintain records that include the lot or code number or other identifier if that information 
exists. For example, if the warehouse distribution facility receives cupcakes wrapped by pairs in 
plastic, with 10 pairs to a box (the packaging [noun]) that typically is placed on retail store 
shelves for purchase by consumers, and the distributor removes the plastic containers of paired 
cupcakes from the boxes to place with other products into different containers (e.g., a food gift 
basket), then this activity would constitute repacking and establishing and maintaining records 
of the lot or code numbers or other identifiers, to the extent that they exist, would be required. 
Similarly, if the warehouse distributor receives a pallet containing 100 cases of wine to be sold 
to consumers by the case, and the warehouse distributor replaces a broken bottle in one case 
with a new bottle before shipment to a customer, the distributor is engaged in packing 
(repacking). (Under the Final Rule, businesses are not considered consumers; see e.g., sections 
1.327(d) and 1.327(e).) If, however, the wine is sold to a retail store that unpacks the cases and 
sells the wine individually to consumers, then FDA will consider exercising enforcement 
discretion regarding the lot code requirement, because in this circumstance the distributor's 
action of replacing a broken bottle is part of the distribution and transportation process. 
 28.10 Q: [Added June 2006] If I receive a shipment of food in bulk (e.g., loose apples) and 
place the apples into smaller packages for redistribution (e.g., bushel baskets or plastic bags 
containing 10-12 apples each), am I considered a packer and therefore required to establish and 
maintain records to include the lot or code numbers or other identifiers? If I receive the apples 
already placed in plastic bags and put 15 bags each into boxes for delivery to a retail store, am I 
"packing" the apples? 
A: As explained above in 28.7A and 28.9A, FDA considers "packing" to be placing food in a 
container other than the finished container that directly contacts the food. Placing the apples 
into plastic bags is considered "packaging" [verb], which is a manufacturing/processing activity. 
As such, the requirement to record lot or code numbers or other identifiers, to the extent they 
exist, applies. For apples that the warehouse receives in bags and places into boxes for purpose 
of shipment only, FDA will consider exercising enforcement discretion regarding the lot code 
requirement. 
29. Information Reasonably Available to Identify the Specific Source of Each Ingredient 
29.1 Q: A bulk grain elevator receives many small lots from individual farmers, aggregates 
them, and blends them to whatever specifications are required. What records and degree of lot 
specificity are required for the grain elevator? 
A: The grain elevator is required to establish and maintain records for each incoming shipment 
of grain, including a lot number if it exists, in accordance with section 1.337. When blended 
30  Contains Nonbinding Recommendations 
grain is released by the facility, it must also establish and maintain a record, including both the 
lot number if one is assigned and information to identify the specific source of each component 
grain, to the extent that the information is reasonably available, in accordance with section 
1.345. In the response to Comment 94 in the Final Rule preamble, FDA acknowledges that the 
degree of specificity may be limited by the current physical configuration of the facility. For 
example, the facility may place thirty lots from farmers into a single storage bin, place another 
thirty lots into a second bin, and draw from both bins to create a blended product that is 
transferred to an immediate subsequent recipient. The record created for the outgoing blended 
product should indicate all immediate previous sources for the component grain; in this example 
there may be as many as sixty. 
29.2 Q: A feed mill receives ingredients and commingles individual shipments into bins which 
are never completely empty. Over the course of a year, a hundred or more lots could 
theoretically be part of any food drawn from a bin. Would the feed mill have to provide all these 
lot numbers for food it releases? 
A: Yes. Manufacturers are required to establish and maintain records for each food received, 
including the lot number if it exists, in accordance with section 1.337. When a food is released 
by a manufacturer, the firm must establish and maintain records that include information 
reasonably available to identify the specific source of each ingredient used to make every lot of 
finished product in accordance with section 1.345. In the response to Comment 94 in the Final 
Rule preamble, FDA acknowledges that certain business practices are not amenable to linking 
incoming ingredients with specificity to the outgoing product, and that it may not always be 
possible to identify the specific source of an ingredient that was used to make a lot of finished 
product. Because shipments of incoming material are commingled in the storage bin, the record 
created for every lot of food released by the manufacturer that incorporates material from the 
bin would include all possible sources of the material placed in that bin. 
29.3 Q: A firm uses raw agricultural commodities to manufacture its products. What are the 
recordkeeping requirements: (1) if the firm receives its ingredients directly from farms and 
commingles them in storage bins on site, and (2) if the firm receives ingredients that already 
have been commingled by a distributor? 
A: The source of each shipment that enters a particular storage bin must be recorded in 
accordance with section 1.337. If the commodities are commingled on site, there will be more 
sources for a given bin. In both cases, incoming sources of ingredients must be linked to 
finished products leaving the site to the extent that the information is reasonably available in 
accordance with section 1.345. For example, if a lot of a product incorporated an ingredient 
from a particular bin and that bin was filled with a commodity derived from five immediate 
previous sources, then those five sources would be the reasonably available information for that 
ingredient. If the bin was refilled before being emptied and now may contain ingredients from 
up to ten immediate previous sources, then this is the information that is reasonably available. If 
the firm receives ingredients that already have been commingled by a distributor, the firm only 
has to record the lot numbers of the food, as received, to the extent that information exists, and 
link incoming sources of ingredients to finished products leaving the site to the extent that the 
information is reasonably available in accordance with section 1.345. 
31  Contains Nonbinding Recommendations 
29.4 Q: A manufacturing firm may handle over a thousand different ingredients on the same 
day, and three or four lot codes of the same ingredient from the same supplier may be used on a 
particular day. Assuming the ingredients arrive at the manufacturing facility with lot codes, 
does the manufacturer have to track each lot code and link it to a finished product? 
A: Yes. The manufacturer is required by section 1.337(a)(4) to establish and maintain records 
for each ingredient it receives, including the lot codes of each ingredient received if they exist. 
When the manufacturer releases a food, it must also establish and maintain records for that 
food. The records must include both the lot code of the finished product if it exists and the 
specific source of each ingredient used to make every lot of finished product, to the extent that 
information is reasonably available, as required by section 1.345(b). 
29.5 Q: A firm manufactures many varieties of ice cream and sorbet, and delivers these 
products directly to restaurants and scoop shops. Do the incoming sources (including lot codes) 
of each ingredient have to be linked to the specific outgoing products? 
A: Yes. As a manufacturer, the firm must establish and maintain records for the ingredients that 
it receives, including lot codes if that information exists, in accordance with section 1.337. The 
firm must also establish and maintain records when it releases each article of food, including 
information reasonably available to identify the specific source of each ingredient in every lot of 
ice cream or sorbet, in accordance with section 1.345. 
29.6 Q: A manufacturing firm has multiple suppliers of particular ingredients and packaging 
materials. Is it sufficient to simply record all the potential suppliers that an ingredient or 
packaging material might have come from? 
A: [Revised February 2012] Persons who manufacture, process, or pack food are required to 
establish and maintain records regarding receipt of the lot or code number or other identifier of 
each ingredient and any finished container that they place in contact with food, if a lot or code 
number or other identifier exists, in accordance with section 1.337 and 1.327(k). When the food 
is released, records must be established and maintained that include the specific source of each 
ingredient used to make every lot of finished food and any finished container placed in contact 
with food, to the extent that the information is reasonably available (e.g., does not require 
physical reconfiguration of the manufacturing facility), in accordance with section 1.345. 
"Packaging" is defined in section 1.328 as "the outer packaging of food that bears the label and 
does not contact the food." The manufacturer, processor, or packer does not have to establish 
and maintain records for any packaging or for finished containers that it does not place in 
contact with the finished food, as stated in section 1.327(j). All existing relevant records must 
be made available as soon as possible to FDA on request, not to exceed 24 hours, as required by 
sections 1.361 and 1.363. If information is reasonably available when food is released to narrow 
the possible sources of an ingredient, it is not sufficient to record all potential suppliers that an 
ingredient or packaging material might have come from if there is no expectation that that 
supplier's product would be in the finished product (e.g., no shipments have been received from 
a vendor for months and onsite supply has been depleted). 
29.7 Q: A candy manufacturer has a starch molding operation in which a candy is deposited 
into a starch that has impressions. The starch is used to form the candy and remove the 
moisture. After a period of time the candy is removed from the starch and sent to packaging. 
32  Contains Nonbinding Recommendations 
The starch is dried, cooled and placed back into the starch trays for the deposit of more candy. 
In the manufacturing operation some starch is lost due to spillage and dusting. New starch is 
added to replace the lost starch. It is possible that the starch in the system could have been in the 
system for many months. The manufacturer only replaces 300-400 pounds a day and the entire 
system has over 40,000 pounds. How should the company track this? 
A: FDA considers the starch a food ingredient, as defined and discussed in the response to 
Comment 61 in the Final Rule preamble. However, section 1.345(b) only requires 
nontransporters to identify the specific source of each ingredient that was used to make every 
lot of finished product to the extent that such information is reasonably available. In this case, 
information about the source of starch from which daily additions to the system are made 
should be reasonably available, and thus it should be possible to define a length of time (and 
series of lots of candy) during which a specific source of starch is being used to replenish the 
supply. Depending on the size of each lot of starch relative to the size of the entire system and 
the number of suppliers, the manufacturer might reasonably identify multiple sources of starch 
that contribute to the system. The manufacturer would not need to identify sources of starch 
received prior to the compliance date established for the Final Rule. 
29.8 Q: A bottling firm that bottles water and delivers it to various consumers receives returned 
bottles for reuse from these customers. Does this regulation require that the outgoing refilled 
bottles that are released by the bottling manufacturing firm must be linked to the source of the 
incoming bottles returned by the firm's customers (i.e., the individual consumers)? Does the 
bottling firm have to record the lot numbers or other identifiers of the empty bottles collected 
from these customers? 
A: Section1.337 requires that nontransporters identify the immediate previous source of all food 
received. Section 1.327(k) states that persons who place food directly in contact with the 
finished container must establish and maintain records for the packaging. When the bottling 
firm receives new bottles from the bottle manufacturer for first time use, the record of receipt 
must include the lot or code number or other identifier (if it exists) as required by section 
1.337(a)(4). When bottled water is released to businesses (but not individual consumers), 
section 1.345(b) requires the nontransporter who releases that food to establish and maintain 
records that include information reasonably available to identify the specific source of every 
ingredient used to make every lot of finished product. This includes the specific source of the 
finished container that contacts the food (e.g., bottle) if the nontransporter is the one who placed 
the finished food (e.g., water) in contact with the finished container. When the firm receives 
returned bottles from customers, the response to Comment 21 in the Final Rule preamble states 
that the immediate previous source for returned water bottles is the customer. FDA intends to 
consider exercising enforcement discretion with regard to the name of the specific customer 
who returned each empty bottle if the bottling company establishes records when used empty 
bottles are received from multiple customers (businesses or individual consumers) indicating 
"customer return" or equivalent as the source, provided the bottles are returned as is (i.e., 
without further manufacturing/processing, such as cleaning, by a third party). When the bottles 
are refilled and released to customers, FDA intends to consider exercising enforcement 
discretion with regard to section 1.345(b) if the records indicating the source of the incoming 
returned bottles indicate "customer returns." If, however, a third party firm collects reusable 
containers after use from customers (in this example empty water bottles), and then releases 
33  Contains Nonbinding Recommendations 
them to the manufacturing firm that refills them, FDA does not intend to consider exercising 
enforcement discretion regarding the manufacturing firm's (in this example, the bottling 
company's) immediate previous source of the reusable containers. After reusable bottles are 
used for the first time, FDA intends to consider exercising enforcement discretion regarding the 
requirement in section 1.337(a)(4) for lot numbers or other identifiers. 
 29.8 Q: [Added November 2005] During food processing and manufacturing production, non-
traditional ingredients such as food contact packaging are used. Under the recordkeeping 
regulation, food processors and manufacturers are required to identify the lot code number or 
other identifier associated with the ingredients that go into a product. Food contact packaging in 
many cases will have lot code numbers or other identifiers. During packaging, packaging 
components may be commingled. For example, during a bottle capping operation, it is common 
to add bottle caps from a variety of lots to a capping hopper and during the capping operations 
the ability to associate a particular cap's lot code with a specific final product is completely lost. 
In the event that an FDA inspector requests information, under section 306 authority, regarding 
the immediate previous sources of the ingredients (including food contact packaging) in a 
specific finished product, is it acceptable in this example to inform the inspector that the cap 
came from any one of a specified set of lot codes associated with what the facility has received 
into its inventory and that no reasonable information is available which would allow the food 
processor or manufacturer to narrow down the list to a single lot code or small set of codes? 
A: Yes. In the response to Comment 94 in the Final Rule preamble, FDA acknowledges that it 
may not always be possible to identify the specific source of an ingredient that was use to make 
a lot of finished product. Section 1.345(b) only requires information reasonably available to 
identify the specific source. As discussed in response to Comment 97 in the Final Rule, what is 
reasonably available depends on the particular circumstances. Further, section 1.345(b) does not 
require the lot code of each ingredient used in the released food, although the firm may choose 
to track lot numbers of ingredients through the manufacturing, processing, or packing process as 
a matter of business practice in order to determine the specific source of each ingredient. Under 
the circumstances described above, the lot codes of the caps are only necessary to the extent that 
they allow the firm to identify the specific source or sources of the caps. Depending on the 
facility's physical configuration, there may be multiple possible sources of the caps for each lot 
of food released. It is not acceptable, however, to simply identify all caps received by the 
facility if it is possible to determine more specific information given the facility's physical 
configuration. 
 29.9 Q: [Added November 2005] All manufacturers of spirits and wines use water as an 
element of their finished product. How much detail is required in the records the manufacturer 
establishes and maintains to comply with 21 CRF 1.337(a)(4) and 1.345(b)? Is it sufficient to 
say the water was sourced from the local water company on a specific date, or that water was 
pulled from a local natural source and purified on-site? 
A: Yes. See the response to Comment 100 in the Final Rule preamble. Section1.337(a)(4) only 
requires manufacturers to establish and maintain records that include the lot or code number of 
the food ingredient if that information exists. 
30. Adequate Description of Type of Food 
34  Contains Nonbinding Recommendations 
30.1 Q: A warehouse receives imported food that is stored in shipping containers. Upon receipt, 
the warehouse only records the container numbers of the containers it receives and holds. Is this 
sufficient information? 
A: A person, such as the warehouse above, who manufactures, processes, packs, distributes, 
receives, holds, or imports food must be able to provide to FDA records containing sufficient 
information to satisfy the requirements of sections 1.337 and 1.345 as soon as possible upon 
request, not to exceed 24 hours, as specified by sections 1.361 and 1.363. Records that only list 
the container number do not contain sufficient information to meet the requirements for an 
adequate description of the food, its quantity, and how the food is packaged. 
30.2 Q: How much detail is required in describing a food (e.g., different types of commodity 
grains, different varieties of a particular grain)? 
A: Descriptions of commodity grains and produce must be as specific as possible (e.g., Roma 
tomatoes versus cherry tomatoes, sweet corn versus feed corn), as required by sections1.337 and 
1.345. As discussed in the response to Comment 64 in the Final Rule preamble, this type of 
description saves time and resources during a tracing investigation because it allows FDA to 
narrow its focus to the appropriate product during the investigation. 
30.3 Q: Many food manufacturing/processing facilities have storage vessels in which out-of-
specification, outdated, returned and/or damaged food products are commingled and stored 
pending transfer to animal farming operations where the commingled products are used as 
animal feed or are otherwise reprocessed into an ingredient used in animal/pet food products. 
The composition of the contents of the storage vessel varies from day to day in terms of the 
products and quantities. Lot codes of product transferred to the storage vessel and the specific 
products themselves and their quantities are not recorded and it would be burdensome to do so. 
Is the food processor or manufacturer required to establish and maintain records of the food 
released to farms or reprocessors for use as animal feed that include the specific products, 
quantities and lot codes of the immediate previous sources of the contents (or ingredients) in the 
storage vessel? 
A: As discussed in the answer to question 1.6 above, FDA intends to consider exercising 
enforcement discretion regarding establishment of records by food manufacturing/processing 
facilities for food waste or byproducts they release to farms that is fed directly to animals 
without further manufacturing/processing. If food manufacturing/processing facilities release 
food that is processed further prior to consumption by animals, FDA does not intend to consider 
exercising enforcement discretion regarding sections 1.345(a)(1), (3) and (6). However, FDA 
intends to consider exercising enforcement discretion regarding sections 1.345(a)(2), (4), (5) 
and (b) if the food being released is appropriately described as facility waste or by reference 
to all the substances in production during a specific time period in lieu of identifying the 
specific source of each ingredient used to make every lot of finished product. 
31. Date Food Received or Released 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
32. Lot or Code Number/Other Identifier 
35  Contains Nonbinding Recommendations 
32.1 Q: A food processor records the lot codes on pallets of food, which are then delivered to 
customers by truck. Currently, the processor does not link lot codes with specific customers. Is 
this required by this regulation? 
A: Yes. Persons who manufacture, process, or pack food are required by section 1.345 to 
identify the lot or code number or other identifier of the food that they release to each 
immediate subsequent transporter and nontransporter recipient, if that information exists. If 
there is a lot code on both the pallet and the food, and only the lot code of the pallet is recorded, 
the processor must be able to link each pallet to the lots of food it contains. However, as 
discussed in the response to Comment 112 in the Final Rule preamble, food placed directly on 
the shelves of a retail store by a manufacturer, processor, or packer upon delivery (direct store 
delivery) is excluded from the requirement to record lot or code numbers. 
32.2 Q: If a manufacturer receives ingredients that have a lot number but that lot number is not 
provided to the manufacturer by the ingredient supplier, is the manufacturer required to actively 
obtain the lot number for each ingredient? 
A: Yes. Section 1.337 requires that persons who manufacture, process, or pack food must 
establish and maintain records that include the lot or code number or other identifier for all food 
they receive, if that information exists. The manufacturer must obtain the lot numbers for each 
ingredient received from the ingredient supplier. 
32.3 Q: A company owns retail stores and receives multiple shipments of the same item into its 
stores. Currently, the company would be able to identify all of the transporters that delivered a 
specific product to a particular store over the last several months. However, the company could 
not identify the specific transporter who delivered a particular lot to that store. For example, the 
company's records would show that on a given date, ABC Trucking Company delivered 25 
cases of Brand X 1.2oz chocolate bars to a specific store. However, the company could not link 
a specific box of those bars on the store shelf to a specific carrier, because there were other 
deliveries of that item from other carriers on other dates, and those chocolate bars are now 
commingled on the shelf. Would the company's current capabilities be in compliance with this 
regulation? 
A: Section 1.337 requires that nontransporters establish and maintain records that identify the 
transporter and nontransporter immediate previous sources for all food they receive. Only 
persons who manufacture, process, or pack food are required by section 1.337(a)(4) to include 
lot or code numbers or other identifiers in the records they establish and maintain, if the 
information exists. Therefore, a retail store receiving 25 cases of Brand X chocolate bars must 
create at the time of receipt a record that includes the specific transporter and nontransporter 
sources of the food, an adequate description of the food, the date of receipt, the quantity of food, 
and how the food is packaged. The record does not have to include the lot or code number or 
other identifier of the product. 
32.4 Q: If a firm is a manufacturer, processor, and packer of a single product, would all lot 
numbers associated with this process (e.g., lot numbers for individual cans, lot numbers for 
pallets, etc) have to be tracked? 
36  Contains Nonbinding Recommendations 
A: [ Revised February 2012] Section 1.345 requires persons who manufacture, process, or pack 
food to establish and maintain records when releasing the food to another person that include 
the lot or code number or other identifier (to the extent this information exists). FDA 
recommends that a vertically integrated company which generates several lot or code numbers 
or other identifiers in the course of its operations use the most specific one. Specific information 
about the food helps FDA narrow its investigation and increase the speed of the trace in the 
event that the food may be associated with serious adverse health consequences or death to 
humans or animals. However, another acceptable alternative would be for the firm to record 
identifiers of larger packages (such as pallets) but retain the ability to link these to lots of cans 
when necessary. 
 32.5 Q: [Added November 2005] A firm manufactures many varieties of ice cream and sorbet, 
and delivers these products directly to restaurants and scoop shops. Do the deliveries have to be 
tracked by lot code? 
A: Yes. The firm functions as a manufacturer and must, when it releases food, establish and 
maintain records that include the lot or code number or other identifier if it exists, in accordance 
with section 1.345(a)(4). However, if the company is performing direct store delivery (placing 
food products directly within the restaurant) the lot number requirement is modified as 
discussed in question 37.1. 
 32.6 Q: [Added November 2005] Manufacturers and processors are required to track the lot 
codes associated with the products they manufacture or process when they are released. If a 
manufacturer brings finished product into its manufacturing facility to be combined (in orders 
or shipments) with the finished products it sends to its customers, is the manufacturer only 
responsible for tracking the lot codes associated with the finished products it manufactures and 
not the lot codes associated with third party finished products? 
A: No. Section 1.337(a)(4) requires manufacturers, processors, and packers to record the lot or 
code number or other identifier of all food received, to the extent it exists. In this example, the 
manufacturer also is functioning as a packer for finished food it receives and finished food it 
manufactures. Section 1.345(a)(4) requires it to record the lot number or other identifier of the 
combined packaged product. Section 1.345(b) also requires the manufacturer to include in its 
records information identifying the specific source of each ingredient (including received 
finished products) used to make every lot of finished combined product. 
 32.7 Q: [Added November 2005] A firm manufactures frozen sandwiches that bear the 
manufacturing date on the packaging, but no lot number. Each category of sandwich does have 
a product code. The sandwiches are released to an independent transporter. The transporter 
delivers the sandwiches to frozen storage sites also controlled by the manufacturer. The 
manufacturer then transports the sandwiches from the storage sites to convenience stores with 
its own transport fleet. The manufacturer currently tracks its products by product code. Does the 
manufacturer have to establish and maintain records for the sandwiches it releases that include 
the manufacturing date? 
A: Yes. The manufacturing date associated with a set of frozen sandwiches is considered a "lot 
or code number or other identifier" and must be included in the record of release of the food 
because it exists, as specified in section 1.345(a)(4). The manufacturer must establish and 
37  Contains Nonbinding Recommendations 
maintain this record of the released food when it is transferred to the independent transporter at 
the manufacturing facility. The records the manufacturer establishes and maintains when it 
reassumes control of the food at the storage site in accordance with section 1.337, and when it 
subsequently releases the food to convenience stores in accordance with section 1.345 do not 
have to include the manufacturing date. At this stage, the manufacturer is functioning as a 
distributor, rather than a vertically integrated manufacturer. However, if the manufacturer 
transports the food from the manufacturing facility to the storage site with its own fleet, the 
release of food to the convenience stores is now made by a vertically integrated manufacturer 
and manufacturing date must be included in the record of release to the stores. 
 32.8 Q: [Added November 2005] If a lot or code number or other identifier exists, but is not 
being used by a manufacturer, processor, or packer as part of current business practice, is this 
business required to include that identifier in the records it establishes and maintains? 
A: Yes. Section 1.337(a)(4) and 1.345(a)(4) require the inclusion of a lot or code number or 
other identifier if it exists, regardless of its use in current business practice. 
 32.9 Q: [Added November 2005] Is a food processor required to physically examine each food 
product it receives in order to obtain the lot or code number information required in section 
1.337(a)(4), or can the processor rely on information provided by its immediate previous 
source? If the processor's immediate previous source fails to provide this information, must the 
processor obtain it by physical inspection of the food? 
A: Manufacturers, processors, and packers are required to record lot or code numbers or other 
unique identifiers of the food they receive if this information exists, as provided by section 
1.337(a)(4). These persons must ensure that they meet the requirement regardless of whether the 
information is provided by their nontransporter immediate previous source. FDA does not 
intend to specify the manner in which these persons ensure that they have the required 
information, which may be obtained in various ways including direct physical inspection and 
contractual obligations. 
33. Quantity and How the Food is Packaged 
FDA has addressed questions we received on this issue in the Final Rule preamble. 
34. Name, Address, Telephone Number, Fax Number, E-Mail Address of Transporters 
Who Transported the Food To You and From You 
34.1 Q: A manufacturer loads a container that is being exported via ocean freight out of the 
United States. The ocean carrier contracted by the manufacturer is responsible for handling the 
inland drayage from the manufacturer to the port. For the purpose of this regulation, is the 
manufacturer's transporter immediate subsequent recipient the ocean carrier or the drayage 
company that is subcontracted by the ocean carrier? 
A: Section 1.345(a)(6) defines the transporter immediate subsequent recipient as the transporter 
who transported the food from the nontransporter. In this case, the manufacturer may identify 
the transporter immediate subsequent recipient as either the ocean carrier with whom they 
contracted or the drayage company that directly receives the container from the manufacturer. 
Either choice complies with the requirements of section 1.345(a)(6). 
38  Contains Nonbinding Recommendations 
34.2 Q: A nontransporter firm contracts with an ocean carrier to bring imported food to the 
firm's facility. The ocean carrier subcontracts with a trucking firm to transport the food from the 
port to the facility. Who is the transporter immediate previous source for the firm? 
A: Section 1.337(a)(6) defines the transporter immediate previous source as the transporters 
who transported the food to the nontransporter. In the example given above, the nontransporter 
firm may identify the transporter immediate previous source for the food as either the ocean 
carrier with whom they contracted or the trucking firm who physically delivers the food to the 
firm's facility. Either choice complies with the requirements of section 1.337(a)(6). 
34.3 Q: What are the manufacturer's and transporter's recordkeeping obligations for a food 
product that is transported intracompany by a contract transporter? For example, a 
manufacturing firm may contract with a transporter to move food product, intracompany, from 
its manufacturing facility to its distribution center. 
A: Section 1.345 requires that persons who manufacture, process, pack, distribute, receive, 
hold, or import food establish and maintain records whenever they release food to another 
person. As discussed in the responses to Comments 13 and 71 in the Final Rule preamble, 
intracompany transfer of food is not subject to additional recordkeeping requirements, provided 
that the food is not released to another person. In this example, the manufacturing firm 
temporarily releases the food to another entity (person), the contract transporter. The 
manufacturing firm would be required to establish and maintain records of the transfer of food 
(including lot numbers if they exist) from the facility to the transporter and nontransporter (the 
distribution center) immediate subsequent recipients. 
34.4 Q: Transporters may deal with brokers who only provide a location and time to pick up a 
product, but do not provide other contact information. Does this regulation require a transporter 
to identify contact and other information for the nontransporter immediate previous source, or 
can the broker be used as the immediate previous source? 
A: This regulation provides transporters multiple options to comply with the records 
requirements for each article of food transported. The information required by the Department 
of Transportation and described in section 1.352(b) or 1.352(c) will satisfy the requirements of 
this regulation, as will information meeting the requirements of the Warsaw convention under 
section 1.352(d). The transporter likely already has this information. The transporter may also 
meet its obligation by complying with section 1.352(a) (identifying specific information that 
must be kept) or section 1.352(e) (providing for the transporter to enter into an agreement with 
the nontransporter immediate previous source) but if the broker is not considered the immediate 
previous source than these options require the transporter to obtain information in addition to 
the broker and location and time of pick up. Whether the broker is considered an immediate 
previous source as defined in section 1.328 depends on the broker's role, as discussed in 
response to question 1.1 of this document. 
34.5 Q: A warehouse has information about the brokers who arrange deliveries and releases of 
food products, but not about the actual contract drivers and trucks that transport the products. Is 
this information required under this regulation? 
39  Contains Nonbinding Recommendations 
A: No. Section 1.328 defines a transporter as someone who has possession, custody, or control 
of an article of food in the United States for the sole purpose of transporting the food. For the 
purpose of this regulation, FDA considers a transporter to include a person who enters into a 
contract to transport food, even if that action is subsequently subcontracted to another entity. In 
this case, the warehouse may identify as their transporter immediate previous source or 
immediate subsequent recipient either the freight broker or the contract driver in compliance 
with sections 1.337(a)(6) and 1.345(a)(6). 
34.6 Q: Some items that arrive at a distribution center from an independent supplier are cross-
docked. In other words, they are not formally received at the warehouse, but transferred to a 
company-owned truck for delivery to one of the company's stores. For these items, no detailed 
item records are kept in the distribution center and we do not currently have a mechanism in 
place for identifying the transporter immediate previous source. The store invoice for the goods 
from the supplier is the only timely method to acquire the supplier immediate previous source, 
although there is not a current software solution for this. However, this invoice does not identify 
the transporter immediate previous source that brought the goods to the warehouse. Can the 
company use the invoice from the supplier to the store as a track-back document? The supplier 
should be able to identify their transporter immediate subsequent recipient (the company's 
transporter immediate previous source). 
A: No, in most circumstances. The recordkeeping requirements in sections 1.337 and 1.345 of 
this Final Rule apply to persons who "hold" food for purposes other than transportation. As 
defined in section 1.328 and explained further in the response to Comment 20 in the Final Rule 
preamble, "holding" means storage of food. Holding facilities include warehouses, cold storage 
facilities, storage silos, grain elevators, and liquid storage tanks. In the above example, if the 
distribution center is a warehouse, then it must establish and maintain records that identify the 
immediate previous source of the food received (the independent supplier) and the transporter 
that brought the food to it, as required by section 1.337, as well as the records required by 
section 1.345. It cannot simply rely upon the invoice, because the invoice does not identify the 
transporter. In the rare circumstance that an independent facility, most likely a truck terminal, 
merely provides a location for trucks to transfer possession, custody, or control to another entity 
and does not itself take possession, custody, or control, even briefly (e.g., the terminal provides 
a location for one truck to transfer goods directly to another truck when both trucks are present 
at the terminal at the same time), then the independent facility is not subject to these regulations. 
If the facility is not independent but instead is owned by a transporter, then the transporter must 
maintain records that include the identity of the person from whom the transporter received the 
food, the person to whom the transporter delivered the food, and the route of movement of the 
food, which will include the terminal, as required in section 1.352(a) or 1.352(b), depending on 
which option the transporter selects for compliance. 
 34.7 Q: [Added November 2005] A public warehouse releases food to a nontransporter 
immediate subsequent recipient who makes its own arrangements for transporting the food from 
the warehouse to the recipient. The receiving firm sometimes does not provide details about the 
carrier who will transport the food from the warehouse. Is the warehouse now required to obtain 
information about the carrier? 
40  Contains Nonbinding Recommendations 
A: FDA intends to consider exercising enforcement discretion with regard to section  
1.345(a)(6) if the warehouse identifies the receiving firm that made the contractual arrangement 
for transport of the food as the transporter immediate subsequent recipient. 
 34.8 Q: [Added November 2005] An animal feed manufacturer purchases a feed ingredient 
from a vendor. The vendor arranges transportation of the ingredient to the manufacturing 
facility. Does the feed manufacturer have to establish and maintain records that identify the 
actual transporter of the feed ingredient? 
A: FDA intends to consider exercising enforcement discretion with regard to section  
1.337(a)(6) if the feed manufacturer identifies the vendor that made the contractual arrangement 
for transport of the feed as the transporter immediate previous source. 
 34.9 Q: [Added November 2005] Is it acceptable to use a post-office box as the address of an 
immediate previous source or immediate subsequent recipient? 
A: No. Section 306(a) of the Bioterrorism Act (codified at 21 U.S.C. 414(a)) states that a person 
shall grant access to FDA to records "upon presentation of appropriate credentials and a written 
notice to such person. . . ." For FDA to present credentials and written notice, the person to 
whom the request is being made must be present. Because such persons are not physically 
present at post office boxes, FDA needs a physical address where the immediate previous 
source or immediate subsequent recipient is located so that FDA may make a records access 
request if necessary. 
35. Vertically Integrated Companies 
35.1 Q: If Company Z owns Facilities 1, 2 and 3, must it also own the trucks that transfer 
product from Facility 1 to Facility 2 and from Facility 2 to Facility 3 in order to be considered a 
vertically integrated company? 
A: Yes. A vertically integrated company, as described in the responses to Comments 13 and 71 
in the Final Rule preamble, is defined by continuous possession of an article of food. Once a 
covered person receives food and keeps information on its immediate previous source, that 
person does not need to keep additional records until it releases the food to another person. 
"Person" as defined in section 1.328 includes individuals, partnerships, corporations, and 
associations. Therefore a company is no longer integrated if the food passes out of its control 
and is released to another person before returning to the company's possession. For example, if 
an independent transporter takes possession of the food in order to transport it between two 
facilities owned by the same company, the company must establish and maintain records 
identifying the transporter and nontransporter immediate previous sources and immediate 
subsequent recipients. 
35.2 Q: Does mode of transportation matter in cases of vertically integrated companies? 
A: No. A vertically integrated company, as described in the responses to Comments 13 and 71 
in the Final Rule preamble, is defined by continuous possession of an article of food rather than 
its mode of transport. A person or company must establish and maintain records whenever it 
releases the food to another person or company, including a transporter. 
41  Contains Nonbinding Recommendations 
35.3 Q: If a nontransporter has a transporter subsidiary and uses that subsidiary to transport 
food to others, is the transfer from the nontransporter to the transporter subsidiary considered an 
internal transfer? 
A: No. As described in the response to Comment 71 in the Final Rule preamble, a person must 
establish and maintain records whenever it releases food to another person. "Person" as defined 
in section 1.328 includes individuals, partnerships, corporations, and associations. A subsidiary 
is a distinct legal person and records of the transfer of possession from the nontransporter to the 
transporter subsidiary must be established and maintained. 
35.4 Q: Are two corporate entities part of the same vertically integrated company if they have 
the same controlling parent? 
A: No. As described in the response to Comment 71 in the Final Rule preamble, a person must 
establish and maintain records whenever it releases food to another person. "Person" as defined 
in section 1.328 includes individuals, partnerships, corporations, and associations. If the two 
corporate entities are legally distinct persons, they are not considered part of the same vertically 
integrated company, and records of transfers of food between them must be established and 
maintained. 
35.5 Q: If subsidiaries are legally distinct but are managed operationally as a single entity, are 
they a single entity for the purpose of this regulation? 
A: No. As described in the response to Comment 71 in the Final Rule preamble, a person must 
establish and maintain records whenever it releases food to another person. "Person" as defined 
in section 1.328 includes individuals, partnerships, corporations, and associations. The 
exemption for vertically integrated companies only applies to distinct legal persons. 
35.6 Q: A grain testing company operates on its customer's property. The customer owns the 
facilities, but testing company employees sample grain trucks and rail cars and then perform 
grade testing while the truck or rail car waits. Some of the sample is destroyed by the test. The 
rest of the sample is collected in a grain wagon owned by the customer. Once the wagon is full, 
the testing company sells the grain back to the customer. Is the testing company exempt from 
this regulation? 
A: No. Section 1.328 defines a nontransporter as a person who owns food or who holds, 
manufactures, processes, packs, imports, receives, or distributes food for purposes other than 
transportation. Although in this case the testing operation occurs within the customer's facility 
and the sampled grain never leaves the site, the grain testing company has ownership of the 
sampled grain and sells it back to the customer. This would be considered release of the food to 
another person and both companies must establish and maintain records of this transfer as 
required by sections 1.337 and 1.345. 
35.7 Q: Does a franchisor's warehouse that delivers to a franchisee's store comprise a vertically 
integrated operation? 
A: No. As described in the response to Comment 71 in the Final Rule preamble, a person must 
establish and maintain records whenever it releases food to another person. "Person" as defined 
in section 1.328 includes individuals, partnerships, corporations, and associations. The 
42  Contains Nonbinding Recommendations 
franchisee's store is a legally distinct person and records of movement of food products from 
warehouse to franchise store must be established and maintained. If the franchise store is a 
restaurant, the franchise store does not need to establish and maintain records because 
restaurants are exempt from all requirements in accordance with section 1.327(b). 
35.8 Q: A retail grocery store chain contracts exclusively with a wholesale company for 
distribution. Does that wholesaler, under specific contract, have to track to which stores the 
particular product went? 
A: Yes. As described in the response to Comment 71 in the Final Rule preamble, a person must 
establish and maintain records whenever it releases food to another person. "Person" as defined 
in section 1.328 includes individuals, partnerships, corporations, and associations. The 
wholesaler is required to establish and maintain records of the movement of food to the 
warehouse in accordance with section 1.337 and from the warehouse to the grocery stores in 
accordance with section 1.345, because it is releasing food to another legal person. The retailer 
is required to establish and maintain records of the receipt of food in accordance with section 
1.337. 
35.9 Q: If a vertically integrated manufacturer, packager, and distributor contracts with a 
second firm for dedicated use of the second firm's warehouse, would this qualify as a being 
vertically integrated? In this case the first firm may have control of the warehouse but not 
ownership of the warehouse. 
A: Yes. A vertically integrated company, as described in the responses to Comments 13 and 71 
in the Final Rule preamble, is defined by continuous possession of an article of food. In the 
example above, because the integrator has "dedicated use" of the second firm's warehouse, it 
has retained continuous and sole possession of the food within its "person." 
35.10 Q: A combined airline and caterer retrieves and reuses unused soda, coffee, peanuts, and 
pretzels. The company currently does not link incoming unused food products intended for 
reuse to outgoing ones on restocked planes. Is the company expected to trace all inbound 
products through recordkeeping? 
A: No. As discussed in the responses to Comments 13 and 71 in the Final Rule preamble, a 
company is vertically integrated to the extent that it does not release food to another person. 
Capture of unused food products from one flight and restocking on another by an airline that 
caters its own flights does not involve release of the food to another person. Since the products 
never leave the possession of the company, records do not have to be established and 
maintained regarding movement of the food. If the airline and caterer were distinct persons, 
they would be required to record any movement of food between them in accordance with 
sections 1.337 and 1.345. Such records must include the immediate previous source or 
immediate subsequent recipient of the food, an adequate description of the food, the quantity of 
food, and how the food is packaged. However, records showing distribution of food to 
consumers are not required. 
35.11 Q: Can a legal entity select a subset of facilities in the chain of custody to be a vertically 
integrated operation, and if so, under what conditions? For example, can legal entity "T," who 
manufactures, packages and distributes product "M," designate the manufacturing facility and 
43  Contains Nonbinding Recommendations 
warehouse used to store newly made inventory 10 miles away as a one vertically integrated 
operation but exclude 4 T-owned regional warehouses that product will be subsequently shipped 
though before delivered to retailers? 
A: [Revised February 2012] As discussed in the response to Comment 13 in the Final Rule 
preamble, a vertically integrated operation must establish and maintain records that identify the 
immediate previous sources of all food it receives, but does not have to establish and maintain 
records identifying immediate subsequent recipients of the food until that food is released to 
another person (including a transporter). However, the vertically integrated operation may 
choose to maintain records of some or all internal transfers of food as a matter of business 
practice. Sections 414(a) and 704(a) of the FD&C Act provide FDA with access to existing 
records relating to the manufacture, processing, packing, transportation, distribution, receipt, 
holding, or importation of food under certain circumstances.  Section 1.361 reiterates the 
circumstances in the statue and specifies that records must be made available to FDA within 24 
hours from an official records request.  
 35.12 Q: [Added November 2005] If a firm administers a distribution center for a retailer under 
contract, are records required for transport between the distribution center and the various retail 
outlets? 
A: Yes. The distribution contractor, a person distinct from the retailer, has custody and control 
of food products at the distribution center and releases them to the retail outlets under control of 
the retailer. The distribution center and retail outlets are therefore not vertically integrated for 
the purpose of this regulation and records of release of food from one facility and receipt at the 
other must be established and maintained in accordance with sections 1.337 and 1.345. 
 35.13 Q: [Added November 2005] A vertically integrated company bottles a product and 
distributes it to retail outlets directly. Does the route truck distributing the product have to 
record lot numbers delivered to each retail outlet? 
A: Yes. The company must establish and maintain records in accordance with section 1.345 
when it releases the food to another person. In this case, that release occurs when the food is 
delivered to retail stores. As a manufacturer, the company must establish and maintain records 
for the food it releases that include lot numbers if they exist, in accordance with section 
1.345(a)(4). However, if the company is performing direct store delivery (placing food products 
directly within the retail store) the lot number requirement is modified as discussed in question 
37.1 of this document. 
 35.14 Q: [Added November 2005] A food manufacturer releases frozen sandwiches to an 
independent transporter. The transporter delivers the sandwiches to frozen storage sites also 
controlled by the manufacturer. The manufacturer then transports the sandwiches from the 
storage sites to convenience stores with its own transport fleet. Is the manufacturer required to 
establish and maintain records of the release of the food to the independent transporter as well 
as subsequent receipt from that transporter and release to the convenience stores? 
A: Yes. For the purpose of this rule, the manufacturer/distributor is not a vertically integrated 
entity, as discussed in question 35.1 of this document. The manufacturer must establish and 
maintain records when it releases food to the independent transporter in accordance with section 
44  Contains Nonbinding Recommendations 
1.345. These records must include the lot or code number or other unique identifier of the food, 
if it exists, as required by section 1.345(a)(4). The manufacturing firm also must establish and 
maintain records in accordance with sections 1.337 and 1.345 when the food is received from 
the independent transporter at its storage site and upon its subsequent release to convenience 
stores. At this stage, the manufacturing firm functions as a distributor, and the record of 
subsequent release to the convenience store does not have to include lot numbers. 
 35.15 Q: [Added November 2005] If a company (e.g., a Control State or a privately-owned 
business) makes a transfer between two of its own retail stores or between two of its own 
warehouses using an outside transporter (e.g., UPS or a non-owned trucking company), 
shouldn't the company be exempt under the rule from maintaining records of the transfer? 
A: No. As explained in question 35.1 of this document, the company is no longer vertically 
integrated for the purpose of this regulation if it releases food to another person as part of a 
transfer from one facility owned by the company to another. 
 35.16 Q: [Added November 2005] Two subsidiaries share the same facility. Does this 
regulation require the establishment and maintenance of records when food is transferred from 
the possession of one subsidiary to the other? 
A: Yes. Legally distinct persons must establish and maintain records when food is transferred 
between them. 
36. Reclamation Centers 
36.1 Q: A supermarket chain processes food product returns through a reclamation center. 
Some products go from the center to donations, some back to stores in the chain, some goes 
back to the vendors, and some is sold to salvagers for resale. What are the recordkeeping 
requirements for these products? 
A: As described in the response to Comment 44 in the Final Rule preamble, a reclamation 
center owned by the supermarket chain will be treated as if it is part of the supermarket for the 
purpose of this regulation. The response to Comment 44 also states that the release of food to 
nonprofit organizations is considered equivalent to direct distribution to a consumer and is 
exempt from recordkeeping requirements. However, if the food is returned to the manufacturer 
or sold to another nonconsumer, the reclamation center must establish and maintain records 
identifying the immediate subsequent recipient of the food, to the extent this information is 
reasonably available. If the reclamation center is an independent entity, then both the 
supermarket and the reclamation center must establish and maintain records of product 
movement between them. The other transactions are treated as described above. 
37. Direct Store Delivery 
37.1 Q: The final regulation requires persons who are manufacturers to keep production 
code/lot data. The final regulation also provides certain exemptions (i.e., from lot control) to 
persons who directly place their products into a retail establishment. For a vertically integrated 
company that encompasses both activities, it is not clear which requirements apply. Can such an 
operation maintain lot tracking from the processing/packaging facility through receipt at the last 
company owned distribution center prior to delivery to a retail outlet? 
45  Contains Nonbinding Recommendations 
A: Yes. Sections 1.337 and 1.345 require persons who manufacture, process, or pack food to 
record the lot number or other identifier of the food (to the extent this information exists) for 
food they receive or release, respectively. A vertically integrated company that also does direct 
store deliveries (DSD) is performing mixed nontransporter activities: (1) it is manufacturing, 
processing, packing, holding, transporting, receiving, and distributing its products; and (2) it is 
acting as a retailer (Retailer A) that is essentially renting shelf space from another retailer 
(Retailer B) when it stocks its products on Retailer B's store shelves. Accordingly, the vertically 
integrated company must establish and maintain records for each of these two distinct functions. 
As required in sections 1.337 and 1.345, the manufacturer must establish and maintain records 
of all food it receives, and all food it releases to its distribution or warehouse location, including 
lot number or other identifier (to the extent this information exists) as required in section 
1.345(a)(4). The DSD (Retailer A) must record the release of food to Retailer B as required in 
section 1.345, but is not required to record lot numbers. Retailer B also is a nontransporter who 
is subject to these regulations because it has custody or control of the food. Accordingly, it must 
establish and maintain records of all food it receives from the DSD in accordance with section 
1.337, but it is not required to record lot numbers, as it is not manufacturing, processing or 
packing the food. (See question 6.1 of this document for another example of a person 
performing mixed activities - in that case, an in-store bakery within a retail store.) 
37.2 Q: A company manufactures a food product (e.g., a gallon of milk) and places that milk on 
a truck owned either by the company or by a third party for delivery to a warehouse/distribution 
facility. Does the company have to keep records that contain the lot or code number or other 
identifier of that gallon of milk (in addition to the normal immediate previous source and 
immediate subsequent recipient information.)? If instead the same company places the gallon of 
milk on a truck owned either by the company or by a third party and delivers it directly to a 
retail store, does the company need to keep records that contain the lot or code number or other 
identifier of that gallon of milk? 
A: Yes. Sections 1.337 and 1.345 require persons who manufacture, process, or pack food to 
record the lot number or other identifier of the food (to the extent this information exists) for 
food they receive or release, respectively. In both examples, the company is a manufacturer that 
is releasing the food to another person. In the first situation, the immediate subsequent recipient 
is the warehouse/distributor and the transporter taking the food to the warehouse/distributor is 
either the manufacturer or the third party. In the second case, the release from the manufacturer 
is to the retailer directly. Accordingly, section 1.345(a)(4) requires the manufacturer to include 
the lot number or other identifier of the food to the extent this information exists. If the 
manufacturer does not provide lot numbers or other identifiers, the rule does not require it to 
create one. The warehouse/distributor is not required to record the lot numbers or other 
identifiers, even if they exist, unless it is subsequently packing (including repacking) the milk 
after receipt. The retailer also is not required to record the lot numbers or other identifiers, even 
if they exist, as it is not manufacturing, processing, or packing the milk. 
 G. Who is Required to Establish and Maintain Records for Tracing the Transportation of 
All Food? (Section 1.351) 
38. General Questions 
38.1 Q: There are ship owners that simply haul freight where the transporter is the owner of the 
container. The vessel owner is not considered the transporter; the owner of the container has the 
46  Contains Nonbinding Recommendations 
bill of lading and other information about the container's contents and destination. Does the 
owner of the vessel now need to establish and maintain records? 
A: A transporter is defined as a person who has possession, custody, or control of an article of 
food in the United States for the sole purpose of transporting the food, whether by road, rail, 
water, or air. This definition also includes a foreign person that transports food in the United 
States, regardless of whether the foreign person has possession, custody, or control of the food 
for the sole purpose of transporting the food. In the situation described above, the vessel owner 
has physical possession of the food container for the sole purpose of transporting the food and is 
considered a transporter. Section 1.352 requires that each transporter establish and maintain 
records that identify the immediate previous source and the immediate subsequent recipient of 
an article of food, regardless of whether the immediate previous source and immediate 
subsequent recipient are transporters or nontransporters. The relevant records must be created at 
the time of each transfer of the food. The transporter may enter into an agreement in which the 
nontransporter immediate previous source or immediate subsequent recipient establishes, 
maintains, or establishes and maintains, the required information as described in section 
1.352(e). The vessel owner is therefore required to establish and maintain records as specified in 
section 1.352, as long as that vessel is transporting the food in the United States. 
 38.2 Q: [Added November 2005] Must a foreign transporter (transporting within the United 
States) have a place of business in the United States to comply with this regulation? 
A: No. However, the transporter must be able to comply with the record availability 
requirements of section 1.361 for the records they have established and maintained in 
accordance with section 1.352. The records must be made available as soon as possible 
following an appropriate request by FDA, not to exceed 24 hours. 
 38.3 Q: [Added November 2005] A firm's freight brokerage division negotiates freight rates 
and assigns shipping to independent carriers. Is the brokerage division held liable if an 
independent carrier under contract is not in compliance with this regulation? 
A: No. Both the freight brokerage and the independent carrier are transporters subject to this 
regulation. Both are responsible for complying with this rule, which either may do for the other 
as a matter of business practice, but legal responsibility for establishment and maintenance of 
records and for meeting the records access timeframes specified in section 1.361 remains with 
both parties. For the purpose of this regulation, a person, such as the freight brokerage above, 
who enters into a contract to transport an article of food and has control over the food is 
considered a transporter, even if the actual transport is subsequently subcontracted to another 
entity. If the brokerage is relying on the independent carrier under contract or business practice 
to satisfy the brokerage's duty to comply with this regulation and the carrier fails to keep the 
requisite records, the brokerage is liable for the brokerage's failure to comply. 
 H. What Information is Required in the Transportation Records? (Section 1.352) 
39. General Questions 
39.1 Q: A transporter picks up a container from a pier; what information is the transporter 
required to have about the contents of the container? 
47  Contains Nonbinding Recommendations 
A: The transporter must establish and maintain records that contain the information specified in 
sections 1.352(a), (b), (c), or (d) unless there is a pre-existing agreement with the immediate 
previous source or immediate subsequent recipient to establish, maintain, or establish and 
maintain that information as described in section 1.352(e). 
 39.2 Q: [Added November 2005] An independent transporter makes multiple deliveries of food 
from a single distribution center to multiple retail stores owned by a single company. Does the 
transporter have to establish and maintain records for each separate delivery along its route to 
stores in the retail chain? 
A: Yes. Section 1.352 provides multiple ways in which a transporter of food may establish and 
maintain records to comply with this regulation. However, sections 1.352(a), (b), (c), and (d) all 
include the requirement that the transporter identify the food's destination. Each physical 
location that receives food is considered a destination. The transporter may also enter into an 
agreement with the nontransporter immediate subsequent recipient to establish, maintain, or 
establish and maintain the required information in accordance with section 1.352(e). In the 
example above, the nontransporter could enter into an agreement with the retail chain or the 
nontransporter immediate previous source to establish and maintain the required information. 
 39.3 Q: [Added November 2005] When bottled water is delivered to a single commercial 
account with several physical locations, what records need to be kept? When delivered to 
several buildings at the same location? 
A: The answer depends on whether the person delivering the water is a nontransporter or 
transporter. A nontransporter is required by section 1.345(a)(1) to establish and maintain 
records for all food it releases that identify the name of the firm, address, telephone number and, 
if available, the fax number and email address of the nontransporter immediate subsequent 
recipient. Similar to the nontransporter receiving product from a vendor with multiple ship 
points discussed in the related question 17.3 of this document, the nontransporter delivering the 
water must identify the address and other contact information of the legal person (the 
commercial account) receiving the water but does not need to provide information on each 
physical location. A transporter must instead establish and maintain records as specified in 
section 1.352, which provides multiple options to comply with the records requirements for 
each article of food transported. Sections 1.352(a), (b), (c), and (d) all include the requirement 
that the transporter identify the food's destination. Each physical location that receives food is 
considered a destination. The transporter may also enter into an agreement with the 
nontransporter immediate subsequent recipient to establish, maintain, or establish and maintain 
the required information in accordance with section 1.352(e). 
 39.4 Q: [Added November 2005] Section 1.352(a)(6) states that transporters must establish and 
maintain records that include the route of movement of an article of food in their possession. 
How detailed should this record of the route be? 
A: Transporters complying with section 1.352(a)(6) should record every transfer of the food 
between different vehicles owned by the firm while the food remains in that firm's possession, 
including the location of each transfer. If no internal transfer of the food occurs, the origin and 
destination points at which the transporter received and released the food are sufficient to 
characterize the route of movement. 
48  Contains Nonbinding Recommendations 
 39.5 Q: [Added November 2005] Certain express delivery firms are able to track domestic 
shipments and can identify the shipper and recipient of every shipment. However, the current 
system does not include descriptions of the freight. If FDA made a records access request to one 
of these firms, the agency would presumably already know the identity of the shipment. Given 
this, do these firms have to include descriptions of the freight in the records they establish and 
maintain? 
A: Yes. An express delivery firm described in this example that transports food must comply 
with record retention requirements in section 1.360(f) and the record availability requirements 
of section 1.361. The firm will not be aware of its legal responsibilities under this regulation 
unless it is aware that it is transporting food, and to what degree the food is perishable. In 
addition, if FDA is conducting a traceback or traceforward investigation, the agency may know 
the identity of the food that was transported but not the quantity. Such information may allow 
FDA to rapidly determine whether some of the food was diverted or whether multiple 
transporters carried food between two nontransporters. 
 I. What Are the Record Retention Requirements? (Section 1.360) 
40. General Questions 
40.1 Q: A facility receives a product with two-year record retention requirement, holds it for 
three years, and then releases it. Is the facility required to retain the incoming records until or 
some time after the product is released, regardless of the holding period? 
A: The facility is not required to maintain any record for longer than two years after its creation 
at the time of the transaction it describes, because Section 306 of the Bioterrorism Act explicitly 
limits the retention of records to two years or less. Records created when a food subject to the 
two year record retention requirement is received may be discarded after two years, even if the 
product remains in the facility. The facility still must establish and maintain records identifying 
the transporter and nontransporter immediate subsequent recipient when the food is released in 
accordance with section 1.345, even if the retention period for the record identifying the 
immediate previous source has expired. If a facility anticipates that it may hold food for longer 
than two years, it may wish to retain records of receipt for more than two years as a matter of 
business practice. Such records could be helpful to both the facility and FDA in the event of a 
trace back or trace forward investigation. 
 J. What Are the Record Availability Requirements? (Section 1.361) 
41. General Questions 
41.1 Q: The regulation requires each nontransporter to establish and maintain records onsite or 
at a reasonably accessible location. The recordkeeping requirements may be a burden for 
smaller businesses that assist in product development and product sample testing. Can a larger 
firm that hires a smaller one for food development and testing maintain the records on behalf of 
the smaller firm? 
A: [Revised February 2012] Section 1.360 requires each nontransporter to establish and 
maintain records at the location where the covered activities described in the records occurred, 
or at a reasonably accessible location. FDA does not intend to specify the method or system by 
which this is done. In this case, the larger firm may choose to maintain the required records on 
behalf of the smaller firm. However, when FDA requests access to records that meet the 
49  Contains Nonbinding Recommendations 
requirements of sections 414(a)(1) or (a)(2) of the FD&C Act, as explained in question 41.5 of 
this document, the relevant records must be made accessible onsite at the smaller firm, or at a 
reasonably accessible location. The records must be available as soon as possible, but not to 
exceed 24 hours after an official FDA request, as required in sections 1.361 and 1.363. 
Regardless of the specific arrangements, the legal responsibility for establishing and 
maintaining records, and for producing them in a timely fashion, would remain with the smaller 
firm. 
41.2 Q: It is possible that an investigation may lead FDA to suspect that a product may have 
been tampered with inside a vertically integrated operation, for example en route between two 
facilities. If company systems are set up to establish records as a vertically integrated operation, 
what would be FDA's expectations if intra-company records were requested? 
A: [Revised February 2012] Sections 414(a) and 704(a) of the FD&C Act provide FDA  access 
to existing records relating to manufacture, processing, packing, transportation, distribution, 
receipt, holding, or importation. If FDA requests intra-company records under sections 414(a) 
and 704(a) of the FD&C Act, FDA expects a vertically integrated operation to provide access to 
such existing records as soon as possible, not to exceed 24 hours from the time of receipt of the 
official request, as required by section 1.361. 
 41.3 Q: [Added November 2005] A large firm may produce large amounts of data in response 
to a records access request by FDA (15 boxes of printed material or 3-4 gigabytes of electronic 
data, or more). How should these data be supplied to FDA? 
A: As discussed in the response to Comment 1 in the Final Rule preamble, this regulation does 
not specify the form or type of system in which records must be established and maintained. 
FDA's intent is to have as little impact as possible on current recordkeeping practices if those 
records can meet the requirement of this regulation. However, the firm must have a system to 
retrieve the records and be able to meet the record availability requirements of section 1.361 by 
producing, in response to an appropriate request from FDA, the desired information as soon as 
possible, not to exceed 24 hours. It is not sufficient to simply produce all records from a given 
time period or facility in response to a more specific request for information. 
 41.4 Q: [Added November 2005] A nontransporter establishes and maintains records at the site 
where covered activities are performed. The site is operated seasonally in a remote location and 
the nontransporter's representatives may not be able to reach the site within 24 hours of FDA's 
request for records access. Alternatively, the nontransporter's representatives may be able to 
reach the site within 24 hours to present the records but FDA's representatives are unable to 
reach the site in that time. Is the nontransporter failing to comply with the record availability 
requirements of section 1.361? 
A: Yes. Section 1.361 requires that in the appropriate circumstances, any applicable records 
must be made readily available for inspection and photocopying or other means of reproduction 
as soon as possible, not to exceed 24 hours from the time of receipt of the request. A seasonally 
operated remote location that may not be reachable within 24 hours by either the nontransporter 
or FDA is not a readily available repository for records. Under these circumstances, the 
nontransporter should consider maintaining the records on-site or at a reasonably available 
offsite location as provided by section 1.360(g) to avoid noncompliance with this regulation. 
50  Contains Nonbinding Recommendations 
41.5 Q: [Added February 2012] Under what circumstances may FDA access and copy records 
under sections 414(a) and 704(a) of the FD&C Act? 
A: Sections 414(a) and 704(a) of the FD&C Act provide that FDA may access and copy records 
when:  
  FDA has a reasonable belief that the food is adulterated and presents a threat of serious 
adverse health consequences or death to humans or animals, or 
  there is a reasonable probability that the use of or exposure to the food will cause serious 
adverse health consequences or death to human or animals. 
Under section 704(a)(1)(B) of the FD&C Act, FDA may access such records during inspection 
of any person who manufactures, processes, packs, distributes, receives, holds, transports or 
imports foods. 
 
Additional guidance on FDAs records access authority is provided in FDA Records Access 
Authority Under Sections 414 and 704 Federal Food, Drug, & Cosmetic Act: Questions and 
Answers. 
 
K. What Records Are Excluded From the Records Access Authority? (Section 1.362) 
42.1 Q: [Added February 2012] What records are excluded from FDAs authority to 
access records under sections 414(a) and 704(a)? 
 
A:  The records access authority under sections 414(a) and 704(a) does not extend to recipes for 
food, financial data, pricing data, personnel data, research data, or sales data other than 
shipment data regarding sales. "Recipe" is defined in section 1.328 as "the formula, including 
ingredients, quantities, and instructions necessary to manufacture a food product. Certain 
records may be excluded from access under section 116 of FSMA.  FDA will provide guidance 
on this issue at a later date. 
  
L. What Are the Consequences of Failing to Establish and Maintain Records or Make 
Them Available to FDA as Required by this Rule? (Section 1.363) 
 
43. General Questions 
FDA has addressed questions we received on this issue in the Final Rule. 
 M. What Are the Compliance Dates for the Records Requirements? (Section 1.368) 
44. General Questions 
44.1 Q: Some multinational companies have subsidiaries which may not be food oriented (e.g. 
trucking lines, barge companies, industrial products). These subsidiaries may be located in 
many countries around the globe. Should the total number of employees from all the subsidiary 
companies be included in the total count for the purpose of determining the compliance date for 
this regulation, or should the count be of those employees within the corporate subsidiary 
manufacturing (or otherwise associated with) the food article? 
A: The employee count is limited to the individual company performing covered activities in 
the United States. Section 1.368 specifies that all full-time employees in the individual company 
(i.e., a single legal person) are to be counted, whether or not those employees are engaged in 
51  Contains Nonbinding Recommendations 
activities related to food subject to this regulation. Section 1.327(h) provides that foreign 
persons (except foreign persons who transport food in the United States) are not covered by this 
regulation. 
44.2 Q: A company is foreign-owned and has refineries in 3 other countries. The company's 
only U.S. location has approximately 60 full-time employees. Worldwide, we have nearly 1000 
full-time employees. For the purposes of complying with this regulation, are we considered to 
have 60 or 1000 employees? 
A: The company has 60 employees for the purpose of determining the compliance date for this 
regulation. Section 1.327(h) provides that foreign persons (except foreign persons who transport 
food in the United States) are not covered by this regulation. 
 44.3 Q: [Added November 2005] In cases where a state agency is the vendor for liquor, is the 
compliance dates for the regulation based on the number of employees in the agency or in the 
entire state government? 
A: The compliance dates for the regulation are based on the number of employees in the state 
government. As discussed in question 44.1 of this document, section 1.368 specifies that all 
full-time equivalent employees of a single legal person are to be counted, whether or not they 
are engaged in activities related to food subject to this regulation. 
 44.4 Q: [Added November 2005] How does the definition of employees in the Final Rule (the 
total number of hours a store is open divided by number of hours worked by all employees in 
one year, 40 hours x 52 weeks) apply to a store that may be open more than 40 hours a week? 
A: Section 1.328 of the Final Rule specifies that the number of full-time equivalent employees 
is determined by dividing the total number of hours of salary or wages paid directly to 
employees of the person and of all of its affiliates by the number of hours of work in one year 
(2080 hours = 40 hours x 52 weeks). This is not related to the number of hours per week that a 
store is open for business. 
 
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