International produce businesses that move fruits and vegetables across borders are cheering for Del Monte Fresh Produce in its challenge to the Food and Drug Administration (FDA) closure of the U.S. border to the supplier of Guatemala cantaloupes.
Del Monte Fresh Produce gets cantaloupes in Guatemala from Productos Agricolas de Oriente, S.A (PAO) from growing regions in the San Jorge, Asuncion Mita and Estenzuella areas. Last March 22, Del Monte Fresh Produce announced it was “voluntarily recalling 4,992 cartons of cantaloupes, each containing 4 plastic mesh sleeves with 3 cantaloupes per sleeve, because they have the potential to be contaminated with Salmonella Panama…”
Del Monte Fresh Produce’s recall was in response to an outbreak of Salmonella Panama in 10 states across the U.S. Twenty cases of infection were confirmed by the time the federal Centers for Disease Control and Prevention stopped counting on June 20.
Next FDA imposed an “import alert” for those Guatemalan cantaloupe growing areas. Such alerts mean products can be detained without inspection at U.S. borders. Usually import alerts are imposed for relatively short periods of time until a problem with a foreign food source can be fixed to FDA’s satisfaction.
Del Monte Fresh Produce, however, opted to take an approach favored by some others recently, namely to go to federal court to get the import alert struck down. It basically amounts to throwing a legal fit, saying the company was misled by the FDA when it recalled almost 60,000 cantaloupes, and charging that state and federal epidemiologists were wrong in pinning the Salmonella Panama outbreak on Del Monte Fresh Produce’s Guatemalan melons.
For all the acting out, however, little if anything has actually happened in federal court, causing many to wonder what this is about. One clue comes from how the produce industry is responding, namely its desire to keep those borders open to the products of its foreign suppliers.
So, Del Monte Fresh Produce’s attorneys argue, the “unsupported alleged association between Asuncion Mita cantaloupes and the illnesses from Salmonella” in the U.S. is not enough to merit closing the border to further shipments.
Because FDA did not find an actual Asuncion Mita cantaloupe carrying the Salmonella Panama pathogen, Del Monte Fresh Produce argues the border should remain open to its product, no questions asked.
Whether a federal judge in Maryland goes along or not remains to be seen, but Del Monte Fresh Produce is getting plenty of high-fives from others who routinely move produce across international borders.
While Jim Prevor, the verbose blogger known as the Perishable Pundit, does not exactly speak for the international produce industry, he can pretty well give you the industry’s temperature on about any issue.
“Yet as unfair as the FDA can be with domestic producers, it is absolutely arbitrary when it comes to foreign producers,” Prevor told his readers on Sept. 7. He’s provided the “blow by blow” of many a recent tangle between the produce industry and FDA over import alerts — such as a previous ban on Honduran cantaloupes.
“The problem is obvious: There are no ready checks on FDA’s power,” Prevor wrote. “An FDA official shows up and bans imports from a farm or demands a recall and, without going to court, there is no independent body one can ask to review the correctness of FDA’s actions. The FDA is judge, jury, prosecutor and executioner all rolled into one.”
Asked to comment further by Food Safety News, Prevor said: “The key issue is the need of the FDA for “corrective action” before it allows a farm to resume shipping. Since in the vast majority of cases no cause is ever identified, there is no corrective action that can really address the issue. You wind up with idiosyncratic rule making.”
“When a plane comes down the FAA investigates and may make a new rule — for the entire industry. The FDA may order an individual farm to take corrective action, but the correction doesn’t apply to its next door neighbor, he added.
“If the farm happens to be a gold standard one, fully audited, etc. and the next door one is not, then an import alert has the perverse impact of blocking a high quality farmer from exporting while allowing a low quality one to continue doing so.”
Foreign meat and poultry entering the U.S. must come from a list of processing plants that USDA determines have standards equivalent to those found in this country. Other foreign food products being imported to the U.S. are subject to FDA inspection.
However, that does not always happen. In Guatemala, PAO’s farm in San Jorge was inspected in November 2010, but not the one at Asuncion Mita. FDA did not issue a “Form 483” for its inspection observations. Del Monte Fresh Produce contends that proves San Jorge was in “substantial compliance” with FDA regulatory requirements pertaining to food safety and the same conclusion should be applied to Asuncion Mita.
But just what the cantaloupe growing conditions are in Guatemala remains a murky subject. Del Monte Fresh Produce’s own third party auditor, according to a report in the New York Times, found sewage and waste water emptying into a open ditch about 110 yards from Asuncion Mita’s packing house.
The ditch flowed into a lagoon with additional sewage. A Del Monte Fresh Produce spokesman said chemicals were used to speed decomposition of the waste, and the whole area was surrounded by barbed wire.
Del Monte Fresh Produce responded to the July import alert with its federal lawsuit filed one month ago. At this point, its lawsuit is nothing more than a summons and complaint in a court file. Government attorneys have not yet responded.
That leaves both produce industry hoping for restrictions on when import alerts can be used, and food safety advocates fearing what few controls that do exist on imports will be eroded.