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SPECIAL EDITION V:Salmonella/Tomato Crisis Continues For Most Of Mexico

FDA Leaves Mexico In The Dark

Jim Prevor’s Perishable Pundit, June 17, 2008

With pieces such as Free Baja, Andrew & Williamson Hit Hard By FDA’s Mexican Tomato Ban and Baja Growers Denied Fair Access…Building Case For WTO, we pointed out the injustice and the insanity of FDA’s refusal to extend to various regions in Mexico the same courtesy it has extended to northern Florida. That is, allowing those regions not in production at the time of the outbreak to ship now.

We ran a piece, FPAA Trying to clear Baja, to ascertain what the trade was doing to move the FDA on this matter but now that the northern part of Baja is cleared but other areas of Mexico that also were not in production at the time of the outbreak continue to be blocked from selling in the US while all currently producing US districts are cleared we wanted to know how the government of Mexico was dealing with this continuing “slight” against its farmers. We asked Pundit Investigator and Special Projects Editor Mira Slott to find out more:

Mira first had a chat with Carlos Vasquez, Minister of Agricultural Affairs at the Embassy of Mexico in Washington D.C., who asked us to speak with Ricardo Alday to get the official position of the government of Mexico.

Ricardo Alday, spokesperson for the Mexican Embassy, Washington D.C.

Q: What actions is the Mexican government taking to address the FDA ban on Mexican tomatoes other than those from northern Baja?

A: We’re dependent on the U.S. and FDA to do their part. We are cooperating with everything they are asking for. There are negotiations going on both sides. I don’t know if FDA has given a list specifically of what they need from us. That’s what we’re hoping for. If we need to declare product, we’ll do whatever they require. That is what we are doing in northern Baja with the certificates.

Q: What reason have they given you for keeping all of Mexico off the approved list of sources, save for northern Baja?

A: They haven’t told us what methodology they used for the list of approved sources. Secondly, even if they have suspicion the problem came from a specific area of Mexico, we’d like to know so we can go to that area and do our own part, using our equivalent of your FDA inspectors to take a look and do our own analysis and investigation and take it from there.

Q: Have you been able to assess losses to your industry and growers so far?

A: The impact to our industry is devastating. We do a market of 1 billion U.S. dollars a year in tomato exports to the U.S. If we know the concern is in a particular state, we can narrow down that area and let other producers free. Tens of millions of dollars have been lost since this started. That’s bad enough. And besides that, it might create social problems where livelihoods of entire towns and villages depend on the tomato product.

Q: What is your reaction to FDA exempting 19 Florida counties based on the fact they were not in production at the time of the outbreak?

A: It raises questions: why are they singling us out with no scientific evidence? By giving the impression Florida is cleared, it’s implying that Mexico is the problem.

We are not willing to be nasty or offensive, but we are under extreme pressure from producers to work this out. FDA’s actions have the appearance of a double standard. We don’t want to accuse the U.S. of discrimination, but it certainly looks that way.

We’re not saying it’s not us. But the other thing is, since the first case was allegedly reported, not one consumer in Mexico, either a resident or visitor, has been infected from Salmonella coming from tomatoes, and that tells you something.

The other point, even if it were to be determined to be Mexican produce bought in the U.S., FDA has to establish if the problem came from raw product at its origin, or if it acquired the infection waiting on the border, on the Mexican side or U.S. side, or during storage, transportation, distribution, etc.

This is not an easy task. By the methodology they’ve used, the FDA has been able to clear so many countries and states. I think they can do the same with our product.

Remember northern Baja is a very small part of our country. The FDA should be able to exclude many more areas that this one.

Q: Do you anticipate the ban being lifted or modified any time soon?

A: There was a conference call June 13. We were pleased FDA moved on northern Baja over the weekend but we hope for more movement very soon.

Q: What’s happening now since FDA cleared Baja California North?

A: The government of Mexico said this is encouraging to see FDA put Baja California North on the approved source list. It sounds hopeful, but we are not any closer to getting answers on where the source of the problem is.

Q: Are you expecting FDA to exempt other regions in Mexico?

A: Not yet. No other production areas are on the FDA approved list. Mexico’s Secretary of the Economy Eduardo Sojo said if this is not solved soon, Mexico might seek compensation for the producers losing millions of dollars.

We know a delegation of officials is meeting this week. Our position is to try and extend the exemption of Baja California North to other states also not in production at the time of the outbreak.

Q: How many states meet that criteria?

A: A number of states. The main ones are Sinaloa, the origin of 35 percent of our tomato exports; Michoacan with 9 percent; Jalisco 8 percent; Chihuahua 6 percent, and the State of Mexico, Estado de Mexico, a small state surrounding Mexico City.

Mr. Alday is exceedingly politique and, as such, doubtless a great asset to his country. But he strikes the nail on the head when he says this: “They haven’t told us what methodology they used for the list of approved sources.”

In much of our work on the Honduran Melon situation, we have found that a key issue, not only for the produce industry but for American society, is that the FDA functions in an essentially lawless manner.

We ran a piece here drawing on two attorneys in Miami, one of whom published an important article on the FDA and Import Alerts, and their conclusion was clearly that the FDA is exercising discretion Congress did not authorize by statute.

It is not an accident that the FDA has not articulated a standard by which one qualifies for the “safe” list — this is FDA’s way of avoiding being held accountable for its actions. If FDA articulates a standard, then someone might sue the FDA for failing to be consistent. If it keeps everything discretionary, nobody can ever say it is wrong.

This degree of discretion is, however, simply inappropriate. Here you see Mexico basically having to plead with the FDA for some dispensation.

Americans in Florida had to kneel like supplicants pleading their case.

But ours is supposed to be a government of laws and not of men, so nobody should ever have to plead for kindness at the FDA. They should always be free to demand their rights.

Fortunately for Mexico, it is in a stronger position than Mr. Alday lets on.

The FDA knows that Mexico holds a big club, that the President of Mexico may elevate the issue by calling President Bush. Doubtless the Mexicans are hoping that with that club hanging over the discussions, FDA will want to move expeditiously rather than risk having the matter become an international diplomatic issue.

Many thanks to Carlos Vasquez and Ricardo Alday for helping the industry understand how the Mexican government in thinking about this issue.

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