Interpretation of "Provided by the Seller" from the SSTP "Prepared Food" Definition

In July 2004, The Food Marketing Institute (FMI) submitted comments to the SSTP (please see attachment) asking for an amendment to the “Prepared Food” definition. FMI requested a “bright line” interpretation of number three of the definition, stating that the mere presence of plates, knives, forks, spoons, glasses, cups, napkins, or straws in a store does not constitute a “Prepared Food.” In other words, food items are not “sold with eating utensils” when the seller has merely placed a napkin dispenser on the counter or has set up a utensil island for customers in their store.