Recall Authority Would Allow for Due Process

Something unusual happened during the peanut recall.

As scores of peanut processors, manufacturers and distributors sprung into action, Westco Fruit and Nuts (Westco/Westcott) — a company that received Oil Roasted Salted Redskin Jumbo Peanuts from Peanut Corp. of America's Blakely, Ga., facility — sat back and did nothing (click here for the story). Even a formal request by the U.S. Food and Drug Administration to recall the peanuts wasn't enough to persuade owner Jacob Moradi.

At first glance his actions seem unconscionable, but closer examination reveals a method to his madness.

Though Westco/Westcott had no comment for SN, an ABC News published report revealed that Moradi had the peanuts tested at an FDA-approved lab and all came back negative for contamination. Since the financial repercussions of recalling product would put him out of business, he sought proof from the FDA that whole redskin peanuts roasted in oil have led to illness. But to no avail.

“For seven years, they did not do inspections [at the PCA plant in Georgia] and now at the cost of a tiny little small business they are coming, and they are forcing me and they have no proof,” Moradi told ABC.

Although the word “no” is rarely (if ever) used by companies who've been asked by the FDA to recall products, doing so is within Westco's rights since the FDA lacks mandatory recall authority.

Ironically, if the FDA were to gain the right to require companies to recall product (and experts are confident it will), Westco/Westcott might have more of a leg to stand on. That's because food safety bills in the House and Senate would grant the FDA mandatory recall authority with due process.

“If the FDA is getting the ability to order you to do something, the flip side is there has to be a process built in so it's not granted unfettered authority to order,” Stuart Pape, managing partner at Washington-based law firm Patton Boggs, told me.

The FDA would have to show that there is reasonable probability that the product is adulterated, and shows a serious risk of adverse health consequences, said Pape.

If that's not enough to convince the food company that it should recall its products, it could state its case during an informal hearing with an FDA official. It would take place within 48 hours of the order to recall, and a food company wouldn't have to recall products before an official heard its side of the story. The FDA would then decide to enforce, alter or drop the recall order based on the hearing's results.

Before the hearing, the FDA would be allowed to persuade the public not to eat the company's product. That's something it can do now.

In fact, it did this on March 23 when it urged customers to check their homes for products distributed by Westco/Westcott. But the peanut processor wasn't granted something it would have been had the FDA had mandatory recall authority. It had “no recourse, no hearing, no process at all,” said Pape.