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Food Recall Lawsuit Could Hamper Regulators, Experts Say

A major fruit company’s lawsuit could undermine efforts by federal regulators to protect consumers from contaminated food, experts say.

As The Associated Press reports, Florida-based Del Monte Fresh Produce sued the Food and Drug Administration last month after the agency halted imports of the company’s Guatemalan cantaloupes, saying the fruit may be contaminated with salmonella.

Del Monte issued a news release accusing the FDA, and several state health agencies, of “erroneous speculation, unsupported by scientific evidence,” about possible salmonella contamination. The company said “neither the FDA nor any state health agency in the U.S. has offered evidence or data to support the FDA action.”

The suit is a rare legal challenge to such a move by the FDA, and some experts say if the company emerges victorious it could set a precedent that would hinder efforts by federal regulators to pull contaminated food out of the marketplace.

“More often than not the public health authorities and the epidemiologists are correct,” said Michael Doyle, director for the Center for Food Safety at the University of Georgia. “If you start putting public health officials in the crosshairs of the lawyers it’s probably going to have a major dampening effect on whether foods are recalled in time to prevent a substantial amount of illnesses.”

The case could become a test for the imperfect science used to trace food contamination outbreaks and determine what is causing a series of illnesses. Regulators have had to balance the limitations of their methodology — which is hampered by the fact that the tainted produce that led to an outbreak might be long gone by the time an investigation begins — against the potential harm to consumers of not taking action.

Del Monte conducted a voluntary recall of cantaloupes imported from a farm in Guatemala in March after the federal Centers for Disease Control and Prevention and FDA determined they were linked to 12 cases of salmonella poisoning. In July, the FDA went a step further and issued an import alert, halting imports of cantaloupes from Guatemala.

A former FDA assistant commissioner who now works as a food safety consultant, David Acheson, said a legal victory by Del Monte would lead regulators to “obviously be more reluctant” to take food off the market. At the same time, he said, the lawsuit sends “the appropriate message to everybody that if you are going to make these decisions and put pressure on companies to recall, you ought to be right.”

But Marion Nestle, a New York University nutrition professor, voiced concern on her blog. She said this sort of litigation could give food companies that opposed recent landmark legislation giving regulators the authority to order recalls a way “to get around Congress and the FDA.”

TIMOTHY BELLA

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