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Probe of Food Testing Labs Yields Subpoenas

Jun 13, 2008 | Parker Waichman LLP

Yesterday, lawmakers voted to subpoena nine companies responsible for analyzing the most dangerous food entering the country as part of an investigation that has become more critical in light of the recent nationwide Salmonella outbreak from contaminated tomatoes.  This follows a May 1 letter sent to 10 laboratories by the House Committee on Energy and Commerce which wrote that the labs may have been encouraged by importing companies to withhold tainted food samples in order to enable foods to reach United States consumers.  The committee asked 50 multinational food companies for a variety of recall- and food-import records dating as far back as 2000.  The House Energy and Commerce subcommittee has been investigating “the possible circumvention of government import alerts” for some time now.

Stupak confirmed that most—nine of 10 companies—declined to voluntarily submit information over concern that the food import companies that hire them would sue them for breach of confidentiality agreements.  The subpoenas are related to information on testing of food found not to meet FDA standards for import into the US.  The nine companies receiving subpoenas are ABC Research Corporation of Gainesville, Florida; Analytical Food Laboratories Inc. of Grand Prairie, Texas; Central Analytical Laboratories Inc. of Metairie, Louisiana; Certified Laboratories Inc. of Plainview, New York; Michelson Laboratories Inc. of Commerce, California; Microbac Laboratories Inc. of Wexford, Pennsylvania; The National Food Laboratory Inc. of Dublin, California; Northland Laboratories of Northbrook, Illinois; and Strasburger and Siegel Inc. of Hanover, Maryland.

Foods posing a potential danger can enter the marketplace only after a laboratory has determined such food is safe, according to Food and Drug Administration (FDA) rules; however, investigators have found it is routine for private labs to continue to test food until a clean result is obtained.  "This repeated testing is done without FDA knowledge that potentially dangerous food has been imported into this country and has entered commerce," said Representative Bart Stupak, (D-Mich) and chairman of the House subcommittee that authorized the subpoenas.

The May 1 letter suggests labs may have discarded test results indicating failures of FDA standards at the encouragement of importing companies. 
"We're gathering information from both the FDA and private industry about the labs almost being complicit in helping importers game the system.  Someone told us you pay for the result you want to get from the labs."  The letter restates Stupak's suspicion that testing on some samples was repeated until the food passed and also states that in other cases, when food failed tests at one lab, importers would simply hire another lab to continue testing until a positive result was received.  "This repeated testing is done without alerting FDA that potentially dangerous food has been imported into this country—a practice which we find deplorable," the letter stated.

Lawmakers said they were frustrated that the FDA has not identified the source of the recent Salmonella contamination, citing their alarm over “yet another outbreak” and previous safety issues with spinach, seafood, and cantaloupes adding that some blame lies with the FDA.  "You've had time," said Representative Marsha Blackburn, (R-Tenn) "We're still waiting.


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