
On Friday afternoon San Diego County published a release saying the Food and Drug Administration collected samples inside the hen houses at Eben-Haezer’s Happy Hens in Ramona, that Salmonella turned up in two of the seven houses tested, and that genetic testing linked what was in those barns to the strains in ill San Diegans. The county added that the California Department of Public Health had shared the FDA results with the owners and recommended a voluntary egg recall, and that as of September 4 the farm had not issued one.
On Saturday the farm answered. Co-owner Chloe Nevarez told the Times of San Diego that nobody had asked her for a recall. By her account, officials from the county, the state and FDA called the farm on Friday and asked what Happy Hens thought about a possible recall, but stopped short of requesting one. She said the farm had already pulled eggs from the two implicated houses on its own, that everything still moving had come from unaffected sites, and that the farm has cooperated throughout. A county spokesman referred the paper to CDPH.
I am not going to referee that phone call, and I do not need to. Both accounts can be honestly held. Neither “recommended” nor “asked” is a defined term, nobody was under oath, and there is no document in public view that settles it. What interests me is the reason a dispute like this is even possible.
The argument exists because nobody used the tool that ends arguments
Since January 4, 2011, FDA has had the power to order a food recall. Section 206 of the Food Safety Modernization Act added section 423 to the Federal Food, Drug, and Cosmetic Act, codified at 21 U.S.C. 350l. It applies to FDA-regulated foods other than infant formula. Shell eggs are FDA-regulated foods.
The statute has two findings and two steps. The findings are a reasonable probability that the food is adulterated under section 402, and a reasonable probability that eating it will cause serious adverse health consequences or death. The steps are these: FDA must first give the responsible party an opportunity to voluntarily cease distribution and recall the food, under section 423(a). If the party refuses, or does not act within the time and in the manner FDA prescribes, the agency may order it to stop distributing and to notify others, under section 423(b). The company then gets an informal hearing within two days.
Step one is not a phone call soliciting a company’s thoughts. It is a formal, written opportunity that starts a clock and creates a record, and it is designed so that step two follows automatically when nothing happens. Nobody in this outbreak has suggested a 423(a) letter went out. If one had, we would not be reading two versions of a conversation. We would be reading a date.
How often the government uses it
Almost never. FDA’s most recent annual report to Congress on the use of mandatory recall authority, covering fiscal year 2024, is the twelfth such report, and it says the agency performed no reportable mandatory recall activities for a food product that year. The fiscal 2022 report says the same thing. Food Safety News counted three uses in the authority’s first decade, in 2013, 2014 and 2018. Fifteen years of law, and the number of times a federal agency has ordered contaminated food off the market is small enough to hold in your head.
This would not be a hard case
Take the two findings in order. Adulteration: FDA’s own environmental samples were positive in two of seven houses, and whole genome sequencing tied those isolates to people who got sick. That is better evidence than the agency usually has when it asks. Serious health consequences: twenty-three cases, seven of them hospitalized, in La Mesa, Del Mar, Ramona and Jamul, with a case in Riverside County. Salmonella in eggs is the hazard the entire federal egg rule exists to prevent.
The obvious objection is that the egg tests are still pending, and only the barns have come back positive. The statute anticipated exactly that. It asks for a reasonable probability, not a confirmed product isolate. Congress went further and wrote the point into the reporting requirement itself: section 206(f) directs FDA to describe, each year, any instance in which there was no testing confirming that a recalled food was adulterated. Lawmakers plainly expected orders to issue on inference from the environment, because that is how these investigations actually work. Waiting for the egg to test positive is a policy preference, not a statutory command.
What the agency’s own guidance says about words like this
There is a small irony in FDA’s guidance on mandatory food recalls. Like every FDA guidance, it opens by explaining that when the agency writes “should,” it means something suggested or recommended, but not required. That sentence describes the last six weeks in Ramona better than anything I could write. The state recommended. The farm heard something less than a recommendation. Nothing was required of anyone.
Three things I would like answered
First, did anyone send a 423(a) letter, and if not, what was the reason. That question has a yes or no answer and a date attached to it.
Second, where did the eggs go. The county says its Department of Environmental Health and Quality contacted retail food facilities that may have received Happy Hens eggs. It has published no list. A shopper who bought a carton in July cannot look anything up.
Third, what separates the five clean houses from the two positive ones. The farm says the eggs still on the market came only from unaffected sites. That may well be right, and I have no basis to say otherwise. It is also a claim about the farm’s own segregation practices, made by the farm, and nobody outside the farm has verified it. A recall does not require the company to be at fault. It requires the product to be off the shelf while somebody checks.
I have written before about what the county’s Friday release established, and our firm keeps a page on the Ramona outbreak for people trying to figure out whether they were part of it.
The farm and the county are arguing about a verb. The statute has one, and nobody used it.









