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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

When is a Recall not a Recall? Perhaps when people keep getting sick by the “recalled” product?

The CDC reported this week that a total of 390 persons infected with the outbreak strains of Salmonella Bareilly (376 persons) or Salmonella Nchanga (14 persons) have been reported from 27 states and the District of Columbia.  Of those sickened, 47 people have been hospitalized – fortunately no deaths have been reported. 

Investigation efforts of state, local, and federal public health agencies, including the FDA, indicate that a frozen raw yellow fin tuna product, known as Nakaochi Scrape, imported from India by Moon Marine is the likely source of this outbreak.  Moon Marine recalled nearly 60,000 pounds of its Scrape on April 18, 2012.  The CDC made its first announcement that a Salmonella outbreak was occurring on April 4, 2012.  Salmonella illness onset dates range from January 1, 2012 to June 3, 2012.

Salmonella Sushi Recall Date Marler.jpeg

Since the Moon Marine recall (see red line above) and CDC announcement, over 100 of the 390 people have consumed the “recalled” Scrape and become ill.  In its announcement this week the CDC also warned that, although the numbers of new cases have declined substantially since the peak in April 2012:

the outbreak may continue at a low level for the next several months since some food establishments may be unaware that they received recalled product and continue to serve this frozen raw yellow fin tuna product, which has a long shelf life.

Over 100 sickened AFTER the outbreak and recall were announced?  Do Scrape eaters have a death wish – hmm, perhaps do not answer that.  However, you have to ask yourself why a food establishment would be unaware that it received the recalled product and continue to sell it or serve it to unsuspecting customers?  It also does not speak well of the recall itself if food establishments – likely grocery stores and restaurants – keep serving tainted Scrape months after a confirmed Salmonella outbreak linked to a recalled product.  So much for FDA’s “mandatory recall authority.”  Why is the FDA not mandating that Moon Marine contact each food establishment and pick up the Scrape?

Perhaps it is time for a bit more transparency from India to your sushi roll?  Perhaps if the FDA named the food establishments that received the Scrape from Moon Marine they would know not to serve it and consumers would know where not to eat it?  FDA’s sister agency FSIS has been doing exactly that for nearly four years.

On August 18, 2008 after years of hand wringing, the FSIS finally put public health before “proprietary” business interests when it made the following rule:

9 C.F.R. § 390.10 Availability of Lists of Retail Consignees during Meat or Poultry Product Recalls

The Administrator of the Food Safety and Inspection Service will make publicly available the names and locations of retail consignees of recalled meat or poultry products that the Agency compiles in connection with a recall where there is a reasonable probability that the use of the product could cause serious adverse health consequences or death.  The full rule can be reviewed at: http://www.fsis.usda.gov/OPPDE/rdad/FRPubs/2005-0028F.pdf

So, FDA, what is your plan?