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FDA, Stealth Recalls, Public Health And Other Interests

Jim Prevor’s Perishable Pundit, February 27, 2012

We thought our piece, Food Safety, Recalls And Why Consumers Don’t Always Need Notification, was fairly persuasive. We didn’t, however, persuade the person we addressed it to. That was Phyllis Entis, a microbiologist who had published a piece titled, 114 Tons of Spinach Recalled By Stealth. In that piece, she asked a question:

…I cannot understand the rationale behind NOT publicizing a Class I Hazard recall of a ready-to-eat item of produce that may be contaminated with a potentially lethal pathogen.

Would anyone care to explain this to me?

We tried to explain various reasons why in that particular situation the product probably never reached consumers and so the FDA saw no reason to publicize the recall. For example, we noted that the spinach was sold in 30 lb. totes and this probably meant that it was sold to processors who were able to pull the product before it hit retailers.

We must have done a poor job of stating our case, because Ms. Entis responded with another piece, this one titled, FDA and Stealth Recalls. Ms. Entis went out and researched other recalls that had not been publicized by the FDA and noted that these were not sold in totes as in the original issue. As such she critiqued our comments this way:

I was taken to task for my February 9th stealth recall ‘rant’ by Jim Prevor of the Perishable Pundit in his February 15th item, “Food Safety, Recalls And Why Consumers Don’t Always Need Notification.” What were his gripes, and how do they stack up in light of what I have found?

Prevor theorized that the E. coli O157:H7-contaminated spinach was not destined for direct retail sale; therefore, he concluded, there was “…no need to notify consumers.”

But, USDA’s Food Safety and Inspection Service routinely publicizes recalls of products that are destined strictly for the institutional market. Why should FDA not do likewise?

Prevor also suggests that the recall was not publicized to avoid worrying or confusing consumers, who would not differentiate between the recalled (curly) spinach from Texas and the unaffected (flat leaf) baby spinach from California and Arizona. He concludes that avoiding a public announcement was the responsible path, to prevent crushing “countless farmers and processors”.

Sorry, Jim, but how does that justification extrapolate to the “Branded” products I’ve cited above — especially those that were sold in retail-sized packaging bearing lot number identification and/or expiration dates?

Finally, Prevor ends his article with the following statement:

“One suspects that the decision to not announce recalls when the announcement would not enhance public health is motivated by the desire to protect another value: Maintaining viable farms, industries, jobs, etc.”

Interesting. I always thought that the primary responsibility of FDA was to protect public health.

Although the original comments related to a specific situation with spinach packed in totes, the real issue is whether consumers will benefit from knowing of a recall.

The typical reason why consumers might not benefit from a recall: If the product never reached consumers, there is nothing for consumers to do.

Very often product is sold and shipped long distances. Sometimes a recall can happen before the trucks even reach the warehouse of a customer. Other times, the product reaches the warehouse but is never distributed to stores.

It is hard to understand anyone objecting to the lack of notice in these situations.

Our example with the totes was simply to say that with product going to processors, such a recall is often easier because there are fewer customers and more of a time lag since product has to be processed.

So when Ms. Entis asks, “…how does that justification extrapolate to the “Branded” products I’ve cited above — especially those that were sold in retail-sized packaging…” the answer is actually very clear and simple. If product is caught — be it retail packages, foodservice packages or totes for processing — BEFORE THE PRODUCT IS SOLD TO CONSUMERS, there is no need for any consumer notification.

In other words, if California Farmer Smith is selling to New York Retailer Jones and during transport the product is recalled and turned around or disposed of in St. Louis, what would possibly be gained by issuing a recall notice to consumers?

We agree with Ms. Entis that the primary responsibility of the FDA is to protect consumer health, but that doesn’t mean it should exercise its responsibilities in a way callously indifferent to the interests of others, including workers who need jobs and farmers who need to sell their crops.

Sure, if the FDA thinks the public health will be served by announcement of a recall, then it should announce it; no arguments here. If, however, the FDA thinks that no public health interest is served by such notification because the product was all caught on a truck or in a warehouse, why cause panic and lead consumers to shy away from healthy produce? It just wouldn’t make any sense.

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