Recalling a Recall

Before the Food Safety and Modernization Act was signed into law at the beginning of the year, the Food and Drug Administration had no legal means to order tainted food off grocery store shelves.

The FDA’s authority was limited to asking a company to remove dangerous items from the food chain. With all the outbreaks of foodborne illness in the past few years, that is a scary and unsupportable situation.

So, Congress did the right thing in handing authority to the FDA, however roundabout the steps involved. The FDA must still first ask a company to do a voluntary recall before it can order one outright.

In March, after a rash of salmonella-related illnesses, the FDA asked Del Monte Fresh Produce to recall cantaloupes grown on a farm in Guatemala, an action promptly taken by the produce company. So far, so good; but here’s where things got costly and interesting. Once Del Monte issued the recall, the FDA put all produce from the farm in question on an import alert, in effect banning imports.

Del Monte began its own investigation into the case and came up with a different conclusion than the FDA, but its requests to have the import alert lifted were rejected.

The produce importer filed a rare lawsuit against the FDA, alleging the agency did not perform “a comprehensive and reliable investigation” and that the “FDA ultimately found no connection between Del Monte Fresh cantaloupes and any cases resulting from the Salmonella outbreak.”

In its lawsuit, Del Monte spelled out some discrepancies in evidence it says the FDA refused to consider, including that one patient denied eating cantaloupe and contracted his illness more than a week before any Del Monte cantaloupes from the farm in question were on the market; another patient told investigators he bought his cut cantaloupe pieces from a retail chain that does not sell Del Monte products.

Some consumer advocates had a press release field day after the lawsuit was filed, saying Del Monte was “bullying” the FDA. The critics called for the FDA to remain tough in the fight against unsafe food.

The FDA and Del Monte quickly reached an agreement: the FDA dropped the import ban, and Del Monte dropped the lawsuit.

Having the FDA be tough on unsafe food is kind of like having a prosecutor be tough on crime by locking up as a murder suspect the first person he comes. It only works if you find the right target. More likely, however, is that criminals and unsafe melons will still be wandering the streets.

Contact Stephanie Nall at

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