FDA Classifies Brokers as Shippers in Final Rules on Food Transport Safety

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By Mark B. Solomon, DC Velocity Apr 19, 2016

Brokers oppose the language, but say they are prepared to play the cards they've been dealt.

The mantra of U.S. freight brokers is that they're not shippers. Brokers arrange the transportation of their customers' goods. But the freight belongs to somebody else, and brokers never touch the shipments or the equipment used to haul them.

The Food and Drug Administration (FDA) has other ideas. In publishing its long-awaited final rules last Tuesday on the sanitary transportation of human and animal food, the agency did what the brokers asked it not to do: Classify them as shippers.

This means brokers must comply with the regulations as if they were the shippers. The food producers are indemnified once they turn over their shipments to the broker. The producers will instruct the broker on the requirements for the product's safe carriage and handling. However, the responsibility of guaranteeing a clean shipping environment—and the corresponding liability if the ball is dropped during transportation—rests with the broker.

In broad strokes, brokers will be tasked with establishing controls for the transport of food that comes in contact with the environment. (The rule exempts the transport of frozen foods as well as food completely enclosed in containers, unless temperature controls are required.) Brokers must also notify the carrier and cargo loader of the conditions the shipping equipment needs to be in to achieve compliance. For example, brokers must certify in writing that a trailer has been precooled to a proper temperature, although there is nothing that said the freight itself must be precooled.

Failure to comply with the rules could lead to civil and criminal penalties if folks are sickened by food that went bad during transport. It could also leave brokers exposed to significant out-of-pocket costs—not to mention the inherent aggravation of tangling with insurance companies—if food becomes adulterated while in transit.

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