I have a question regarding §112.114 "What requirements apply to dropped covered produce?"
The rule states: "You must not distribute dropped covered produce. Dropped covered produce is covered produce that drops to the ground before harvest. Dropped covered produce does not include root crops that grow underground (such as carrots), crops that grow on the ground (such as cantaloupe), or produce that is intentionally dropped to the ground as part of harvesting (such as almonds).
What does the term distribute mean? Are farms allowed to sell dropped covered produce if the dropped covered produce is picked up by a customer at a pick-your-own operation?
For example: A customer is picking up apples off the ground at a pick-your-own orchard to purchase from the orchard. Is the orchard allowed to sell the customer these dropped apples that the customer picked up themselves?
Thank you for your inquiry about the Produce Safety Rule (See 80 FR 74353 (Nov. 27, 2015)), the full title of which is “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption.”
Under §112.114 farms are prohibited from distributing dropped covered produce. As such you may not sell dropped covered produce to customers at a pick-your-own operation. To avoid having customers picking up dropped covered produce, you could inform your customers about this Produce Safety rule requirement, such as through signage displayed in a conspicuous area on the farm or other notification.
Thank you for contacting FDA’s FCIC/TAN.
This communication is intended for the exclusive use of the inquirer and does not constitute an advisory opinion (21 CFR 10.85(k)). Also note that this response is not intended to be a comprehensive list of all applicable requirements. Please check FDA’s web page (www.fda.gov) regularly for guidance reflecting our current thinking. Additional information on FSMA can be found on FDA’s FSMA web page (www.fda.gov/fsma). This communication may contain information that is protected, privileged, or confidential. If you have received it in error, please immediately delete all copies.