FDA mandatory recall mistakes

^[5]NW Law FirmCan Business Lawyers Afford to Practice “Defensively”?
Stoel Rives LLP ^[6]
By Kenneth Odza

For years, a debate has raged on the merits of vesting the FDA ^[7] with mandatory recall powers. Mandatory recall is part of the food safety legislation that may or may not pass in this Congress, so it’s worth discussing. At present, the FDA lacks any power to order a recall. Its only legal authority is administrative detention and seizure.

Many, including some regulators, have argued against mandatory recall because it will result in less and less timely recalls. The argument that mandatory recalls may result in less timely recalls goes as follows:

1. Under the current system (where FDA lacks mandatory recall authority), the onus is on the food seller to initiate the recall. If it doesn’t issue a recall in the face of an FDA request to issue a recall, the food seller faces the dire consequences of FDA’s bully pulpit  (press releases from FDA explaining why the food is unsafe) and possibly a seizure order ^[8]. In the event of foodborne illnesses, ignoring an FDA request may also be grounds for punitive damages under the laws of some states;
2. Because the onus under the current system is on the food seller (and not the FDA), the FDA frequently defers to the food seller’s judgment when the facts surrounding a potential recall remain murky and uncertain. The FDA is not required to make a judgment about a recall and, for political reasons, often refrains from or delays making a decision as to whether to request a recall;
3. Mandatory recall may reverse the dynamic and remove much of the onus from the food seller and put it on FDA. Mandatory recall may give the food seller cover if it chooses to delay or not issue a recall. If a food seller believes that its product is unlikely to be a threat to human or animal health, it might choose to wait until the FDA orders a recall. Under the current system, most food sellers will err on the side of caution when deciding whether or not to issue a recall. If the facts surrounding a recall are murky or uncertain, a mandatory recall regime may make it more prudent for a seller to wait for the FDA to decide. If the FDA is worried about being too trigger happy or quick to order recalls, a recall that may have been issued routinely under the current system may (ironically) never happen if FDA is vested with mandatory recall authority.

Mandatory recall authority, as its currently written in S. 510 ^[9], may also change the threshold of when recalls are initiated. The threshold for a recall under sec. 206 of S.510 ^[9] is described as when “there is a reasonable probability that an article of food . . . is adulterated . . . or misbranded . . . and the use of or exposure to such article will cause serious adverse health consequences or death to humans or animals.”

The language of the statute closely follows what the FDA currently defines as a class I recall ^[10]. But what about situations defined under the current scheme as class II or class III recalls ^[10]? FDA’s definition of a Class II recall is “a situation in which use of or exposure to a violative product may cause temporary or medically reversible adverse health consequences or where the probability of serious adverse health consequences is remote.” A Class III recall is “a situation in which use of or exposure to a violative product is not likely to cause adverse health consequences.” Query whether the statute lets foodd sellers off the hook for issuing recalls in Class II or Class III situations?

Note that FDA appears to retain some power even if there is not “reasonable probability” that the product will “cause serious adverse health consequences or death.” S. 510 appears to lower the threshold for administrative detention by FDA by removing the condition that the food presents a risk of serious adverse health consequences. And, under S. 510, FDA would continue to have seizure power. The standard for seizure is simply if the food is adulterated ^[11] or misbranded. One has to wonder whether FDA would use its limited resources on a seizure action in a class II or class III food recall where the chances of serious adverse health consequences are remote or not likely.