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Mandatory Recalls? Careful what you ask for

With each outbreak of contaminated food, government’s first priority is to identify the pathogen and its source, and get the stuff off supermarket shelves before more people get sick.

The first two tasks are essentially matters of science. Epidemiologists have learned how to quickly identify the offending food, and DNA technology provides a highly reliable technique for tracing that food back to its original farm or factory.

But getting contaminated food out of the marketplace is another matter — not science, but a matter of law and politics, which makes it more complicated.

At present, the federal government has very little authority to require the recall of a contaminated product.  The Food and Drug Administration (FDA) can order recalls of infant formula, medical devices, and human tissue products.  

For everything else — hamburger, spinach or peanut butter — the agency can only suggest that a company voluntarily recall a tainted product.

Companies typically comply; most see a recall is in their own corporate interest. But, perhaps inevitably, some resist – at least until many more consumers are made sick.

For years, food safety advocates have been demanding more government authority.  And Congress appears to be listening.  Two food safety bills now before Congress give the FDA the power to require product recalls – given certain circumstances.

H.R. 2749 in the House allows the FDA to seize and quarantine food if the Secretary of Agriculture has “reason to believe” the product poses a health risk.

And S. 510 in the Senate allows for mandatory recalls if there is a reasonable probability to believe a product is contaminated.

For some consumer advocates, the response is: It’s about time.  Society should not have to wait for companies to conjure up the guts to recall food that is potentially contaminated, they say.   Federal regulators need to step in and force the issue.

Roy Costa, a food safety consultant in Florida, supports mandatory recalls as long as the legal responsibility remains with the supplier or processor.  The government needs a more systematic and effective approach to identifying recalled products, so that consumers can be properly informed, he says.  But the FDA needs that authority to get tainted food off the market.

Some go even further.  One authority, somewhat facetiously, suggests that corporate executives be “forced to eat that which they offered to sell to others.”

But others are dubious of strengthening the government’s hand.  For some, it’s a matter of principle.

Robert LaBudde, a food safety authority based in Virginia, warns that mandatory recalls are the equivalent of “warrantless searches,” a new and frightening federal weapon.  The FDA and other federal agencies “are not unbiased entities,” he explains.  “They are subject to politicization and misuse, just as police agencies are.”

In particular, he says, federal agencies have a history of using their authority to punish companies that are not sufficiently submissive.

“I am opposed to mandatory recall unless the statute places protective limits on regulatory abuse of power,” he says.

Other arguments are more pragmatic.  Critics fear that mandatory recalls would come with a time-consuming appeal process, so that it could take weeks or months to get contaminated products off store shelves.

LaBudde and others believe the existing system of voluntary recalls has worked well.   While government lacks overt legal clout, it can and does use publicity or the threat of legal action to enforce its will.   For this and other reasons, “It is rare for a company not to issue a recall when the regulator wants one,” LaBudde says.

Dr. Ted Labuza, a food and nutrition professor at the University of Minnesota, adds that existing law, including the Food Bioterrorism Act of 2002, gives government all the authority it needs to force recalls when necessary.

“It would be nice to see it in law, but we have that ability now,” Labuza explains. “I would rather see that states invoke an involuntary manslaughter charge against CEOs whose products kill the consumer.”

Food safety consultant Jim Prevor, of The Perishable Pundit, an online publication, rejects that idea as well.  “Our knowledge is incomplete and there are no absolute solutions,” he says. “We value food safety, but it is not the only thing we value.  We might believe it to be safest to grow everything in secured greenhouses … but we have not chosen to require that because we don’t want to pay that high a price for food.  We value both food safety and reasonably priced food.”

© Food Safety News
  • John

    I am concerned that mandatory recall will slow the process since in either USDA or FDA, the decision to do a mandatory recall will be done at a fairly high level and after much discussion with the agency lawyers so it may delay decisions for days to weeks while a compelling legal case is made that the agency can’t lose. In the current system which has worked for the last 40 years with 3-4 exceptions of voluntary recalls, companies have recalls their products when asked, the decision has been made fairly quickly after a compelling public health or epidemiologic case has been made and the agency’s authorities were not tested nor was a federal employee likely to be sued over the issue. This is one the issues that sounds good but when you go through the mechanics of how it will work in comparison the current system works fairly well When the bills are under consideration by committee, one of the questions that should be asked will mandatory recall be faster and more effective than the current system.