U.S. Food and Drug Administration

Center for Food Safety & Applied Nutrition

5001 Campus Drive

College Park, MD 20740

October 30, 2018

Jerry Hancock

Founder/CEO

Sub Zero Nitrogen Ice Cream

301 S 400 E

American Fork, UT 84003

Dear Mr. Hancock:

This letter is in response to your email dated October 23, 2018, regarding your concerns about the Food and Drug Administration’s (FDA’s) recent consumer safety advisory on the risks of eating, drinking, or handling food products prepared with liquid nitrogen immediately before consumption. I realize the efforts needed to ensure food safety in a retail food establishment on a daily basis and applaud your interest and focus on keeping food safe for the consumer. To that end, I’d like to help clarify what was contained in the advisory and how the FDA interprets the Food Code on this issue.

First and foremost, the 2017 FDA Food Code does not specifically prohibit the use of liquid nitrogen in the preparation or service of food sold in retail and food service establishments. FDA publishes the Food Code, a model that assists food control jurisdictions at all levels of government by providing them with a scientifically sound technical and legal basis for regulating the retail and food service segment of the industry (restaurants and grocery stores and institutions such as nursing homes). Local, state, tribal, and territorial regulatory authorities use the FDA Food Code as a model to develop or update their own food safety rules and to be consistent with national food regulatory policy. Retailers are responsible for ensuring that the foods they sell are safe and comply with applicable federal, state, and local laws and regulations.

In response to requests from state and local authorities and retailers for more information about liquid nitrogen and dry ice used as food and beverage ingredients, FDA has prepared the attached information available now on our Retail Food Protection webpage at: https://www.fda.gov/downloads/Food/GuidanceRegulation/RetailFoodProtection/IndustryandRegulatoryAssistanceandTrainingResources/UCM624588.pdf

It will also be posted soon within our Food Code Reference System (FCRS), an online database that provides access to FDA’s interpretative positions and responses to questions related to the FDA Food Code: https://www.fda.gov/Food/GuidanceRegulation/RetailFoodProtection/FoodCode/ucm391534.htm

This document provides retailers and food service establishments with information on procedures, such as directions and training for food employees, to minimize the risks associated with accidental ingestion or skin contact with liquid nitrogen.