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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Salmonella Peanuts – FDA Serves Warrant for Inspection of Westco Fruit and Nuts Inc. – Is this the future if Recalls are Not Voluntary?

For the last few weeks the FDA and Westco Fruit and Nuts Inc. (Westco/Westcott), have been "negotiating" on whether a recall would be issued of Westco/Westcott peanut products.  Today the FDA dropped the hammer down.  From the FDA Website:

At the request of the U.S. Food and Drug Administration, U.S. Marshals today executed an inspection warrant at Westco Fruit and Nuts Inc. (Westco/Westcott), an Irvington, N.J.-based company. Westco/Westcott did not provide access to distribution documents and declined to recall products after an FDA request. Regulated companies are required by law to grant FDA entry for inspection, as well as provide access to distribution records. The FDA does not have authority to compel companies to recall food products, such as peanuts.  The company, which produces and distributes peanuts and peanut products, received peanuts and peanut product from the Peanut Corporation of America (PCA), a Georgia company that recalled products in January due to concerns of Salmonella contamination.  Despite PCA’s effort to remove the affected product from the market and FDA’s intervention, Westco/Westcott has refused to recall its products.

"FDA’s enforcement action against Westco Fruit and Nuts is an appropriate step toward removing potentially harmful products from the marketplace, especially when, as in this case, a company is unwilling to share information FDA needs to ensure food safety," said Michael Chappell, the FDA’s acting associate commissioner for regulatory affairs. "The FDA uses all appropriate legal means necessary to obtain information and fully investigate firms or individuals who put the health of consumers at risk."  On March 23, 2009, the FDA formally requested Westco/Westcott to initiate a recall of all of its products containing peanuts from PCA because such products may be contaminated with Salmonella. On March 26, 2009, the FDA also issued a formal notice to Westco/Westcott requesting access to certain records concerning the distribution of PCA peanut containing products. The company declined both requests.

Investigations by the FDA and the Centers for Disease Control and Prevention identified products from PCA’s Blakely, Ga., facility as a source of the current Salmonella Typhimurium outbreak. These efforts led to PCA’s recall of peanuts and peanut-derived products.  Between Nov. 19, 2008, and Dec. 30, 2008, Westco/Westcott received three shipments of Oil Roasted Salted Redskin Jumbo Peanuts from PCA’s Georgia facility.  Westco/Westcott sold these peanuts in various size/packaging configurations and also used them as an ingredient in a variety of mixed nut products and trail mix produced between Nov. 19, 2008, and early February 2009.  On Feb. 9, 2009, New Jersey officials executed an embargo action at Westco/Westcott’s distribution facility to prevent the company from further distributing potentially contaminated peanuts or peanut-derived products in the company’s inventory.

Last week ABC reported:

A federal official said Moradi [Westco/Westcott] "ran away and hid" when government inspectors showed up at his plant. Moradi acknowledged hiding from FDA inspectors but said it was because they had repeatedly visited him and staked out his plant, and he was frightened.

"I was intimidated," Moradi said. "I was scared of them."

Moradi described Westco as "a tiny little business" with annual sales of a little more than $1 million.

"These people are basically doing it to cover their a**. FDA is doing this to cover their a**," he said. "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. "

The real question is whether if FDA had recall authority if companies would fight the recall and drag out the battle like Westco/Westcott has done?  The reality is that the "voluntary" recall system has worked quite well over the years.  There have been only a handful of folks like Westco/Westcott who refuse to put public health before profits.