Food producers are reporting a sharp rise in food recalls so far this year. During the first quarter of 2015, the U.S. Food and Drug Administration (FDA) published notices of 118 food recalls (excluding pet foods), and the U.S. Department of Agriculture published notices of 52 recalls of meat products. Those are almost double the numbers for the same periods in 2012, 2013, and 2014.
However, this does not necessarily mean the 2015 food supply is less safe than prior years. One cause for the increase in recalls could be better implementation of the 2011 Food Safety and Modernization Act (FSMA), resulting in improved detection of problematic foods. Other explanations might be increased reporting of recalls to regulators, increased use of public notices of recalls, or improved willingness of producers and distributors to initiate recalls.
Food recalls can affect virtually any type of food. Recent ones involved spinach, cumin powder, and even Valentine’s Day candy. Products are recalled for numerous reasons, and not all recalled food is unsafe to eat.
The Federal Food, Drug, and Cosmetic Act states that foods are subject to recall when they are adulterated or misbranded. 21 U.S.C. §§ 342, 343. Adulterated foods are generally unfit for consumption, and misbranded foods are generally mislabeled in some way that makes their labels or ingredients misleading, which could be harmful to certain people, such as those with allergies. Id. Common reasons that foods are adulterated or misbranded include:
(1) contamination by microbes such as salmonella or listeria;
(2) presence of foreign objects such as metal fragments or stones;
(3) allergen ingredients not declared on the label;
(4) food colorings not declared on the label; and
(5) mislabeling (i.e., placing the wrong label on the product).
According to the FDA, the majority of recalls are voluntarily issued by the manufacturer or distributor. Nevertheless, the FSMA strengthened FDA’s ability to impose mandatory recalls. Under FDA’s mandatory recall authority, the FDA must allow the manufacturer or distributor to cease distribution and recall the food voluntarily. 21 U.S.C. § 350l. If the responsible party fails to do so, the FDA can issue an order requiring immediate cessation of production and notification of all wholesalers or other entities that received the food. Id. The FDA must then notify the public of the food items affected and of any similar food items not included in the recall. Id. at 350l(g).
If the FDA has reason to believe a food item is adulterated or misbranded, the FDA may also detain the product for up to 30 calendar days to determine if the food is indeed fit for sale. See 21 C.F.R. §§ 1.377 to 1.406. The USDA has more limited recall authority than FDA, but bills pending in Congress could change that.
Consumers can find more information about food recalls at www.foodsafety.gov/recalls. Manufacturers, distributors, or food retailers with questions about federal or state food safety laws should consult Akerman LLP or other legal counsel.