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FDA to Ask for Recall Authority as Part of Import Safety Action Plan

Nov 8, 2007 | Parker Waichman LLP

The Food & Drug Administration (FDA) is going to ask Congress for the power to order food recalls when it deems a product hazardous. If granted, the expanded food recall powers would greatly change the way the FDA conducts business, as it is now only able to ask food suppliers to voluntarily recall dangerous items.   The FDA announced that it would seek the new recall powers yesterday, after having endured months of food poisoning scandals that led many to criticize the way the FDA polices food safety.  

The request for more recall authority is part of the FDA “Food Protection Plan” that was submitted to the White House on Tuesday. It is a component of a larger Import Safety Action Plan that was devised following a series of highly publicized recalls of foreign made products.  This year, everything from imported tires, pet foods, toys and seafood have been recalled because of dangerous contamination.  The food scandals, in particular, have highlighted the limits of the FDA’s authority over the food supply.  In addition to being unable to order recalls, the FDA also does not have enough inspectors to adequately police food imports.

In announcing the Import Safety Action Plan, President Bush conceded that the government “needs to do more to ensure that American families have confidence in what they find on store shelves.”  Bush said that though he believed the vast majority of imports are safe, the huge increase in imported products over the years required that the US take a new approach to safety.   According to the President, last year the US imported $2 trillion worth of goods.

The overall Import Safety Action Plan would also increase the power of several other US regulatory agencies, including the Consumer Product Safety Commission.  Those parts of the proposal would authorize the CPSC to issue follow-up recall announcements, and the plan would require recalling companies to report supplier and delivery information to the agency.    The new safety plan would also make it illegal for companies to knowingly sell a recalled product, and it would allow the CPSC to impose asset forfeiture penalties for criminal offenses. 

Another component of the Import Safety Action Plan would establish a certification program for companies that consistently meet safety standards.  The plan’s supporters claim that such a program would allow the FDA and other regulatory authorities to concentrate on companies and countries with poor product safety records.  

But not everyone is impressed with the new Import Safety Action Plan.  Senator Charles Schumer (D-NY), said that while he was in agreement that the FDA and CPSC needed more authority, it would be of little use unless they received more funding.  Schumer also criticized the Import Safety Action Plan because he said it still “leaves consumers in the dark and continues the hodgepodge of federal oversight.”

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