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Warrant Issued for Company That Refused Salmonella Recall

Apr 9, 2009 | Parker Waichman Alonso LLP

Late last month we wrote about how Westco Fruit and Nuts was not cooperating with the U.S. Food and Drug Administration (FDA) regarding potentially salmonella-tainted peanuts linked to the massive outbreak that originated with the Peanut Corporation of America (PCA).  Now, at the request of the FDA, U.S. Marshals executed an inspection warren at Westco Fruit and Nuts, Inc. (Westco/Westcott) in Irvington, New Jersey.

Westco/Westcott did not provide access to distribution documents and declined to recall products despite an FDA request.  The FDA explained that regulated companies must—by law—grant FDA entry for inspection and provide access to distribution records; however, the FDA does not have authority to compel companies to recall food products.

Westco/Westcott produces and distributes peanuts and peanut products and received such products from PCA, the company linked to the historic salmonella contamination that sickened nearly 700, was linked to nine deaths, and resulted in thousands of recalls.  Despite PCA's effort to remove the affected product from the market and FDA's intervention, Westco/Westcott refused to recall its products, said the FDA.

"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 those products may be contaminated with salmonella.  Three days later, on March 26, the FDA 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.

Meanwhile, said the FDA, between November 19 and December 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 November 19, 2008 and early February 2009, said the FDA.  On February 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.  It is unknown how many are in possession of potentially contaminated Westco/Westcott products.

In late March, and again today, the FDA urged, and is urging consumers to check their homes for peanut-derived products made or distributed by Westco/Westcott. For those consumers who find Westco/Westcott products, they should dispose of the peanuts in a safe manner by placing them in a plastic bag, sealing the bag properly, and placing it in a trash bin; they should wash their hands after handling. Salmonella is bacterium that can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems.