The U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety, Food and Drug Administration, and Department of Health and Human Services have announced a February 23, 2015, public meeting in College Park, Maryland, to discuss draft positions for consideration at the 9th Session of the Codex Committee on Contaminants in Food in New Delhi, India on March 16-20. The lengthy agenda for the February meeting includes (i) maximum levels for lead in ready-to-drink fruit juices and nectars as well as in canned fruits and vegetables; (ii) proposed draft maximum levels for inorganic arsenic in husked rice; (iii) a proposed draft Code of Practice for the Prevention and Reduction of Arsenic Contamination in Rice; (iv) proposed draft maximum levels for cadmium in chocolate and cocoa-derived products; (v) a discussion paper about the feasibility of developing a Code of Practice for mycotoxins in spices; and (vi) a priority list…
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A February 2, 2015, New Yorker article following the career of plaintiffs’ attorney Bill Marler examines how litigation has shaped the food-safety landscape in the absence of robust regulatory oversight. Viewing the U.S. inspection and recall system through the lens of a 2013 Salmonella Heidelberg outbreak that reportedly sickened an estimated 18,000 people, Wil Hylton interviews Marler as well as current and former federal officials about the complicated evolution and sometimes contradictory mandates of the U.S. Food and Drug Administration (FDA), U.S. Department of Agriculture (USDA) and other agencies responsible for food safety. In particular, the article notes that many regulators credited Marler with changing the role of lawsuits in food policy. “Where people typically thought of food safety as this three-legged stool—the consumer groups, the government and the industry—Bill sort of came in as a fourth leg and actually was able to effect changes in a way that none of…
The U.S. Department of Agriculture’s Food Safety and Inspection Service, Food and Drug Administration, and Centers for Disease Control and Prevention (CDC) are hosting a February 24, 2015, public meeting in Washington, D.C., to update stakeholders and solicit input about the agencies’ collaborative initiatives to improve foodborne illness source attribution. The discussion will target the agencies’ effort to develop a single approach to creating harmonized foodborne illness source attribution estimates from outbreak data for Salmonella, E. coli O157, Listeria, and Campylobacter. Those interested in attending the meeting should register online by February 17. See Federal Register, January 28, 2015. Issue 553
The U.S. Department of Agriculture (USDA) has proposed new standards that aim to reduce Salmonella and Campylobacter in “the poultry items that Americans most often purchase,” including ground chicken and turkey products as well as raw chicken breasts, legs and wings, according to Agriculture Secretary Tom Vilsack. The proposed standards would require routine sampling throughout the year rather than infrequent sampling on consecutive days, and the allowed amounts of Salmonella in chicken parts, ground chicken and ground turkey would be lowered substantially. A USDA press release notes that the Food Safety and Inspection Service implemented standards for whole chickens in 1996, but “has since learned that Salmonella levels increase as chicken is further processed into parts.” See USDA News Release, January 21, 2015. Issue 552
Shook, Hardy & Bacon Agribusiness & Food Safety Co-Chair Madeleine McDonough was quoted in two January 2, 2015, Law360 articles about various legal, legislative and regulatory issues expected to affect food and beverage manufacturers in the new year. Given the September 2014 convictions of former Peanut Corp. of America owner Stewart Parnell and two other company executives on criminal charges stemming from a 2008-2009 Salmonella outbreak that sickened hundreds of people nationwide and was linked to nine deaths, McDonough speculated that similar misdemeanor prosecutions under the Park Doctrine could be on the rise. “People are really watching all of the fallout from the Parnell situation and trying to keep that in mind in making sure they have appropriate procedures internally,” McDonough told Law360. Under the Park Doctrine, food and drug company executives can be criminally prosecuted for product safety violations without any proof that the executives had any specific knowledge or…
The European Food Safety Authority (EFSA) has launched a risk assessment in response to the European Commission’s urgent request for scientific advice on the H5N8 avian influenza A virus detected in Germany, the Netherlands and the United Kingdom. Focusing on the role of wild birds as vectors, EFSA plans to release a December 2014 report that will provide risk managers “with independent scientific advice and assistance on animal health and welfare related to avian influenza and any possible food safety issues.” See EFSA News Release, November 26, 2014. In a related development, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service has amended an interim rule restricting the importation of live birds and poultry, hatching eggs and poultry products “from regions where any subtype of highly pathogenic avian influenza (HPAI) is considered to exist.” Effective December 1, 2014, the final rule now permits the importation of HPAI-resistant species, including pigeons…
The European Union’s (EU’s) Court of Justice has determined that the law requires fresh poultry meat to satisfy the microbiological criteria for foodstuffs and that national law may impose a penalty on “a food business operator which is active only at the distribution stage” for placing a contaminated food product on the market. Reindl v. Bezirkshauptmannschaft Innsbruck, No. C-443/13 (E.C.J., decided November 13, 2014). The issue arose from an Austrian proceeding involving a fine imposed on a food retail manager after a sample from her store of vacuum-packed fresh turkey breast produced and packed by another company was found to be contaminated with Salmonella Typhimurium. The Unabhāngiger Verwaltungssenat in Tirol stayed the proceeding and referred to the EU court the questions whether (i) food business operators “active at the food distribution stage” are subject to the full regime under Regulation (EC) No 2073/2005, and (ii) the microbiological criterion in the…
The Government Accountability Office (GAO) has released a report assessing the U.S. Department of Agriculture’s (USDA’s) current approach to Salmonella and Campylobacter in chicken and turkey products and recommending that the agriculture secretary direct the Food Safety and Inspection Service (FSIS) to take steps to improve the approach. The report reviews past USDA action on these pathogens, including the establishment of standards limiting Campylobacter contamination and the tightening of existing Salmonella contamination standards. GAO recommended that the agriculture secretary direct FSIS to develop Salmonella and Campylobacter performance measures to monitor whether efforts to bring processing plants into compliance with the poultry products standards are meeting the agency’s goals. GAO also recommended that effectiveness measures be included in future revisions of compliance guidelines for controlling the pathogens. According to the report, USDA agrees with the recommendations. Issue 542
Agribusiness & Food Safety Associates Ann Havelka and Jara Settles have co-authored an article titled “FDA Warning Isn’t Enough Proof for Takings Claim” published on October 17, 2014, by Law360. The authors discuss a recent Court of Federal Claims ruling that rebuffed a takings claim filed by tomato growers who alleged that a 2008 Food and Drug Administration (FDA) warning about a Salmonella outbreak purportedly associated with certain raw red tomatoes caused tomato sales to decline dramatically. The outbreak was eventually linked to Mexican peppers. The article concludes that while the plaintiffs may have focused on the wrong argument to support their claims, the ruling “should prevent a flood of takings claims in the wake of garden-variety governmental warnings,” which, the authors contend, will allow FDA the flexibility it needs to protect public health. Additional information on the ruling appears in Issue 539 of this Update. Issue 542
A World Trade Organization (WTO) dispute settlement panel has found that a series of food safety restrictions imposed by the Indian government on imports of U.S. poultry products was based on the inaccurate proposition that U.S. poultry was more likely to carry bird flu. India failed to distinguish between high-pathogenic bird flu that had not been found in the United States since 2004 and a low-pathogenic strain that had appeared in the country, the WTO panel found, so it rejected the Agreement on Sanitary and Phytosanitary Measures. The United States initially challenged the import restriction in 2012 following complaints from chicken farmers accusing the Indian government of unfairly shielding its poultry producers from foreign competition. India has 60 days to challenge the panel’s findings, and if it does, the WTO Appellate Body will have 90 days to issue a report on the dispute. Issue 541
