We tend to associate food recalls with food-borne illness, but outbreaks are not the only source of product recalls. Food product recalls can also be initiated by the caprice of government inspectors, even if no one has been made ill. Our latest guest blogger, Emily Cajigas is here to elaborate:

     When news of food recalls hits headlines, a tale of contamination usually ensues. Salmonella, listeria, E. coli and other pathogens are frequently cited culprits for nationwide recalls of our most familiar food products. Yet contamination is not the only cause of a food recall. Failure to follow mandatory production regulations may result in product recalls as well. Such products, though they may not necessarily pose harm to the public, may result in costly recalls.

     This past week, the FDA announced that Productos Tita Corp. voluntarily recalled their Quesito Colombiano Colombian Cheese after it was discovered by a New York State Department of Agriculture and Markets’ milk inspector that the milk used in production of the cheese was improperly pasteurized. According to Article §7.2 of New York Agriculture and Markets Law §§18.67-b.214b;

“No person shall release cheese or cheese curd to the retail trade or to any public eating place or to any institution or to any consumer unless such cheese or cheese curd has been either:(a) pasteurized; (b) made from pasteurized milk; or (c) held after manufacture for a period of not less than 60 days at a temperature not lower than 35 degrees Fahrenheit.”

     This pasteurization requirement is enforced by certified milk inspectors who ensure that producers meet New York State licensing requirements. For “Plant Operators”-i.e. any person who operates any single location or mobile unit which pasteurizes fluid milk or manufactures milk into other dairy products- routine inspections are held every 90 days.

     A routine inspection of a plant can have huge financial ramifications for a non-conforming facility. Under the FDA Food Safety Modernization Act of 2010 (FSMA), the FDA now has mandatory recall authority over domestically produced food products. This power may be asserted via state inspection agencies.  §202 of the Act allows the FDA to expand state recalls:

“If sampling and testing performed by an accredited State or local laboratory results in a State recalling a food product, the FDA is required to review the sampling and testing results to determine the need for a nationwide recall or other enforcement actions.”

     So what might start out as a slight failure to live up to state inspection standards can result in the nationwide recall of a product, despite no per se record of illness or public harm.

     Strictly adhere to production guidelines, but have a backup plan – recall insurance. Many general liability policies do not include coverage for product recalls. Review your policy to see if you are covered. If you aren’t, talk to your provider about whether it is a fit for your business based on your scale. Accidents happen, but when they do, it is wise to cover the bases. A recall of any size is a financial hardship. 

Emily is psyched to be writing about Food Law on our site. She’s a fellow NY attorney, fresh off of an LLM program at Universite de Cergy-Pontoise, and she loves food. She’ll fit right in around here, and we hope to be hearing from her again, soon.