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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Evergreen Produce Refuses to Recall Salmonella-tainted Sprouts linked to illnesses in Idaho, Montana, New Jersey, North Dakota and Washington – FDA, your move!

alfalfa-sprout.jpgToday the FDA is warned consumers not to eat alfalfa sprouts or spicy sprouts from plastic bags labeled “Evergreen Produce” or “Evergreen Produce Inc.,” because the sprouts are possibly linked to 20 reported cases, including one hospitalization, of Salmonella Enteritidis in Idaho, Montana, New Jersey, North Dakota and Washington State.  However, AP’s Mary Clare Jalonick reports that despite the illnesses, Evergreen Produce has not recalled the sprouts. According to Ms. Jalonick:

Nadine Scharf, who identified herself as the co-owner of the company, said Monday that the company has stopped producing the alfalfa and spicy sprouts but is not planning to recall them from store shelves.

Scharf said the FDA has asked her to recall the sprouts but that she doesn’t believe the agency has enough evidence to link the illnesses to her products. Most of the sprouts have probably been consumed anyway, she said.

The FDA “inspected every nook and cranny, every part of our plant, and that was a week ago and they haven’t come up with anything yet,” Scharf said. “We’ll see. Maybe they will. Who knows.” 

“Recalling the sprouts that are out there would be like saying I am guilty of having bacterially contaminated sprouts, and as of today they haven’t documented the fact that any of our sprouts have bacteria in them,” she said.

I have to admit, in two decades of handling foodborne illness cases, I can count on one hand how many times a company has refused to recall a product when linked  to illnesses.  It will be interesting to see if the FDA steps up and forces a recall.  Here is how FDA’s Mandatory recall authority (FSMA § 206) works – at least in theory:

The FDA Commissioner gains authority to order a mandatory recall when the agency determines that there is a reasonable probability that a food other than infant formula is adulterated under FDC Act § 402 or misbranded under § 403(w), and that the use of or exposure to the food will cause serious adverse health consequences or death to humans or animals. FDA must first give the responsible party an opportunity to conduct a voluntary recall. If the responsible party refuses to do so, and the Commissioner issues an order, FDA must give the responsible party an opportunity for an informal hearing within two days of the order’s issuance.

So, let’s see what happens on Wednesday.



  • Chuck Jolley

    So, in the interest of protecting commerce instead of the public health, FDA has to wait days or even weeks before they try to force a recall?

  • Minkpuppy

    I see giving FDA mandatory recall power hasn’t really changed anything. All they can do is keep warning everyone about this company’s sprouts and hope the market responds by not purchasing them.
    When are companies going to realize that epidemiological linkage to their product should be enough for them to yank it off the market on their own? Why take the chance of making more people sick while they seek the elusive test results that link it directly to their sprouts? I hope they have enough money to pay off the lawsuits.

  • Doc Mudd

    ‘Scharf said the FDA has asked her to recall the sprouts but that she doesn’t believe the agency has enough evidence to link the illnesses to her products. Most of the sprouts have probably been consumed anyway, she said…Recalling the sprouts that are out there would be like saying I am guilty of having bacterially contaminated sprouts, and as of today they haven’t documented the fact that any of our sprouts have bacteria in them,’ she said.”
    http://www.wallpaperweb.org/wallpaper/miscellaneous/wolf-pasticcio-last-great-act-of-defiance_1024x768_8817.htm
    Courage, hubris or stupidity? This story has a shopworn plotline and a predictable final outcome. Maybe we’ll be seeing more of Nadine on the evening news…

  • Gabrielle Meunier

    They probably won’t find anything at her plant — the problem is in the sprouts themselves.
    All sprouts should labeled immediately or not allowed to be sold in the U.S. They are hazardous to your health.
    FDA needs to do its job.