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‘Traceability’ Not Just a Good Idea, It’s the Law

With the U.S. Congress back in session, there is hope that work on food safety legislation will soon pick up steam.  One of the issues that will be part of that discussion is “traceability.”  In the food safety context, the term is meant to refer to the ability to track specific food within the chain of distribution, preferably from “farm to fork.”

There are currently federal regulations on the books regarding traceability.  It is not clear, however, that these regulations are sufficient, or that they are being adhered to.  A focus on improved traceability will benefit all stakeholders in the food safety discussion (isn’t that everyone?).  

Why is traceability a good thing?

Improving product traceback is an aspect of food safety reform that should receive near unanimous support, as it will result in improved outcomes for both consumers and the food service industry.  For consumers, better traceability can mean:

1.    Fewer outbreaks:  The ability to identify where food has gone downstream from a supplier can better allow a recall or removal from the marketplace before illnesses occur.  If testing or inspection uncovers a problem with a product, a corporation that knows exactly where its products have gone may be able to prevent them from even reaching consumers.

2.    Smaller outbreaks:  Even where a contaminated product makes it to market, traceability can greatly reduce the size of an outbreak.  Once again, this would be accomplished by more quickly removing the contaminated product from the market.  

3.    Protecting consumer choice and health:  When the scope of an outbreak cannot be immediately determined, health officials have no choice other than to err on the side of caution.  In September 2006, it became clear that a nationwide E. coli O157:H7 outbreak was linked to spinach consumption.  At the outset though, there was insufficient epidemiological data to be certain of the brand or brands involved.  In addition, even with a reasonably good identification of the brand, it could not be conclusively and quickly determined where the product had originated, and whether other brands might also have incorporated the same product.  Therefore, the FDA’s first pronouncement of the E. coli outbreak advised consumers nationwide to cease the consumption of “fresh spinach,” period, until a specific product could be identified as the source of the outbreak.  As a result, a healthy, popular food choice was removed from consumers’ menus. Only by avoiding all fresh spinach could consumers also avoid illness.

On the industry side, points one and two are plainly beneficial as well.  As a food producer, if it is your product that is contaminated, excluding or limiting consumer access to that product has obvious benefits.   Beyond that, there are more benefits:

1.    Differentiating your company’s brand from the recalled product:  Dovetailing with #3 on the consumer side above, the benefits of excluding your brand from a recall, with confidence, is very valuable.   During the early days of the Spinach outbreak, many ultimately unconnected brands of fresh spinach went unsold.

2.    Protecting the image of an entire product line.  In 2008 an outbreak of Salmonella Saintpaul sickened more than 1,200 people.  For weeks, public health officials struggled to identify the source.  Possibilities vacillated between different types of tomatoes, peppers, and other agricultural products.  Some of the problem in identifying the proper product was epidemiological–many sick people had eaten these products in tandem on more than once occasion.  But part of the problem is that produce distributors could not fully identify the entities upstream that had sold them suspect products.  Ultimately, different tomato products were pulled from the shelves, apparently in error.   This not only damaged sales in the short term, but it also could have damaged the long-term reputation of the product.

3.    Protecting a company in a legal setting:  It’s never good news if your company is implicated as a member of the chain of distribution of a contaminated product in an outbreak.   The legal battle that may ensue, however, can be much less threatening where the true “at fault” party can be determined.  Product liability laws vary from state to state.  Still, in many states, the current law offers full or partial protection for entities in the chain of distribution that are no more than “pass-throughs”.   

What are the current regulations on traceability?  Are they being followed?

Current regulations are applicable to traceability in the food industry.  Federal regulations stemming from the Public Health Security and Bioterrorism Preparedness Response Act of 2002 place certain obligations on those who “manufacture, process, pack, transport, distribute, receive, hold, or import food.”  See 21 CFR 1.326 et. seq.  As you can see from the list, the regulations are intended to apply very broadly to those throughout the chain of distribution.  Information that must be tracked includes dates of production, description of the food, quantity, manner of packaging, and lot numbers.  In addition, those shipping must have the contact information of the entity receiving the food.  Those downstream must have that same information for all food items received.   

It is not clear, unfortunately, that these potentially helpful regulations have been adhered to.  In March of this year, the Wall Street Journal (WSJ) reported that a survey of facilities covered by the regulations indicated that 60% were not keeping the records.  WSJ reported that a “watchdog agency also tried to trace 40 items such as fresh tomatoes, whole milk, oatmeal, and yogurt from retail stores to the farm where they were grown, but could do so for only five items.”  (See my earlier commentary, “Food Traceback in USA is Worthless.”)   

How can traceability be improved?

One obvious step to improved traceability is for the entities involved to comply with existing regulations.  Again, following these regulations offers numerous benefits, not simply the burdens ordinarily associated with regulatory compliance.  Beyond this, new food safety legislation also takes aim at traceability issues.  For example, Senate Bill 510, the FDA Food Safety Modernization Act, would require the following, aimed specifically at traceability in produce:

  • The establishment of a pilot project in coordination with the produce industry to explore and evaluate methods for effectively tracking and tracing fruits and vegetables that are raw agricultural commodities.
  • This program is to include at least three types of fruits or vegetables that have been the subject of outbreaks during the past five years.
  • The creation of standards for the type of information, format, and timeframe for persons to submit records to aid in effectively and rapidly tracking raw fruits and vegetables in the event of an outbreak.

S. 510 passed out of committee, but is still awaiting a vote on the Senate floor.  Hopefully, such a vote will come shortly.

Where are we now?

Traceability shouldn’t be a controversial part of our country’s food safety scheme.  Improved traceability is good for consumers and industry.  Its focus is on prevention of illness in the first place, but it also is a useful tool in defining and understanding problems when they arise.  Food industry businesses ought to be making a full commitment to traceability of all of their products notwithstanding any addition, or lack thereof, to the existing legislation.

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