Bills put mandatory recall authority at center of food safety dialogue

by Jay Sjerven
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WASHINGTON — Legislation recently introduced in the Senate and House of Representatives has pushed mandatory recall authority for the Food and Drug Administration to the fore of the national dialogue on food safety. Representative Rosa DeLauro of Connecticut and Senator Dick Durbin of Illinois on May 1 introduced identical bills whose chief aim is to substitute mandatory recall authority in the hands of the F.D.A. for the current voluntary system.

Some question whether mandatory recall authority is necessary or would be more effective than the current system. But there seemed to be broad agreement improvements to current recall procedures could be made.

Kathy Means, vice-president, government relations, Produce Marketing Association, said, while the F.D.A. may not have mandatory recall authority, it is very powerful. Ms. Means said if the agency asks a company to recall a product, and it refuses or doesn’t act promptly, the agency will issue a public alert giving the name of the company and product and indicating how the company fell short with regard to its recall responsibilities, stigmas much to be avoided.

She pointed to the example of the recent recall of olives that may have been contaminated with a deadly bacterium, C. botulinum. In that instance, the manufacturer, Charlie Brown di Rutigliano & Figlie S.r.l. of Bari, Italy, on March 27 initiated a recall of olives processed during a certain timeframe and sold in the U.S. under the brands Bonta di Puglia, Centro, Corroado’s, Dal Raccolto, Flora, Roland and Vantia. The recalled olives had been distributed to wholesalers who marketed them nationally to restaurants and retail stores.

The F.D.A. on April 13 issued an alert titled "F.D.A. Urgently Warns Consumers about Health Risks of Potentially Contaminated Olives" because the company by that date had not contacted importers with specific instructions regarding the recall. The F.D.A. also addressed importers, food manufacturers who may have repacked the olives as well as restaurant and food service providers and suggested how they should handle the suspect products.

Ms. Means said if the current voluntary recall system combined with the weight of F.D.A. influence is deemed not to be sufficient to ensure responsible behavior on the part of some companies, mandatory recall authority could be an option. But safeguards would be important, she added, to ensure products are recalled only if there is a true threat to public health.

"As with all things, the devil can be in the details," Ms. Means said.

She pointed to what she called the successful and prompt recall of spinach contaminated with E. coli O157:H7 last year. While the outbreak of E. coli was tragic, claiming the lives of three individuals, the recall itself was fast, "to the extent I don’t know how it could have been done any faster," she said.

Ms. Means suggested a more pressing problem facing the F.D.A. was its need for greater funding.

"The F.D.A. needs money," she said. "They are stretched. They don’t have the resources to accomplish what people currently expect them to do, let alone take on additional tasks. If the F.D.A. were to have mandatory recall, this would create even greater demands on the agency."

Peter Barton Hutt, senior counsel in the Washington law firm of Covington & Burling, who did a stint as chief counsel to the F.D.A. during the 1970s, said he believed strongly today, as when he was with the F.D.A., that mandatory recall authority was "completely unnecessary and likely counterproductive." Mr. Hutt asserted despite claims to the contrary, the F.D.A. has more power under the current system than it would if encumbered with mandatory recall authority with its likely procedures and safeguards.

Mr. Hutt said currently the F.D.A., should it encounter resistance to a request that a company recall products, has the ability to go on nationwide TV straightaway with its concerns. It has done so in the past. Defying the F.D.A. in a recall situation could endanger brands and companies, Mr. Hutt asserted.

Susan Stout, vice-president of federal affairs for the Grocery Manufacturers Association, Washington, said G.M.A. members may not object strenuously to mandatory recall authority for the F.D.A., if it’s packaged properly. But she added she didn’t believe recall authority would be productive. It would be better to examine the current system and find and correct faults that may compromise food safety.

While the debate over mandatory recall continues, both industry and the F.D.A. are investigating ways current recall procedures may be improved.

Tim Hammonds, president and chief executive officer, Food Marketing Institute, on May 8 remarked that the current recall system is not compatible from supplier to supplier. Mr. Hammonds announced the formation of a food safety task force composed of food retailers and marketers and those who supply them with products. The task force will make proposals regarding how food marketers and their suppliers may better coordinate efforts to promote food safety with special attention given to collaboration in the event of a food recall.

For its part, the F.D.A. assigned its new assistant commissioner for food safety, Dr. David Acheson, the responsibility to develop a strategy for improving its food safety operations. With that project under way, the agency also was investigating means to better communicate with consumers during food recalls. One initiative is a pilot program providing consumers a visual representation of certain food products being recalled.

The six-month pilot program was launched in mid-February. It involves posting photos of labels of those recalled products that pose a significant risk to human health. Photos are attached to news releases and advisories relating to the recalled products.

"The F.D.A. agrees with consumers and consumer groups that posting a photo will help consumers identify recalled food products so they can avoid using them," the agency said in announcing the program.

A spokeswoman for the agency acknowledged the success of the program was largely dependent on the news media and its willingness to broadcast the enhanced consumer alerts.

This article can also be found in the digital edition of Food Business News, May 29, 2007, starting on Page 1. Click here to search that archive.

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