Congressional Food Safety Investigation: U.S. House Committee Sends Inquiry Letter to U.S. Food Processing Firms

14 May 2008 Publication
Authors: Michael D. Flanagan David L. Rosen

Legal News Alert: Food Industry

On May 8, 2008, the chairmen of the U.S. House of Representatives Energy and Commerce Committee (Committee) and the Subcommittee on Oversight and Investigations (Subcommittee) sent a letter of inquiry to numerous U.S. food processors requesting information on the firms’ history of recalls, food safety alerts, and all instances of known chemical or microbiological contamination since January 1, 2000. The inquiry letter is part of the overall investigation the Committee and its Subcommittee have been conducting into issues related to the safety of the U.S. food supply. In particular, since the beginning of the current congressional session in January 2007, the Subcommittee has held six hearings on U.S. food safety issues.

The Committee and Subcommittee now are seeking to assess the extent of microbiological and/or chemical contamination that may result during food processing, and the extent to which controls have failed to prevent or eliminate the contamination. To facilitate the Committee’s assessment, the inquiry letter requests that the major U.S. food processors provide, among other things, the following information related to activities at their facilities since January 1, 2000:

  • A list of all food recalls and food safety alerts issued by the company, including the date of the recall/alert, the product and brand affected, and the reason for the recall/alert, along with identification of the particular contaminant if the recall/alert was affected by a microbiological or chemical contamination
  • For each brand or kind of product, the identification of instances where internal testing found positive results for the presence of chemical or microbiological contaminants in excess of permissible limits established by the U.S. Food and Drug Administration (FDA) or state regulatory agencies
  • For products imported into the United States for handling or processing by the firm, the identification of instances when internal or outside laboratory testing found positive results for the presence of either a chemical or microbiological contaminant in excess of FDA or state regulatory limits
  • For each of the above items, indication of whether the FDA was notified and, if not, why the FDA was not notified
  • A list of all instances where the FDA or any state regulatory agency was denied entrance to any of the firm’s facilities (foreign or domestic), or denied access to any records concerning microbiological or chemical testing performed on products processed at the facility

The Committee’s inquiry letter, which appears to gather additional information to support giving mandatory recall authority to the FDA, presents several interesting regulatory and legal implications for the food processor recipients. First, the letter requests several internal documents and test results that the FDA may not even have access to during the course of a routine facility inspection. These internal documents and test results may contain highly sensitive information that could implicate the companies in a product liability action or affect currently pending actions. Additionally, the inquiry letter poses a public relations challenge for food processors. The companies that received the letter must balance their obligations to respond to the Committee’s investigatory powers and the desire to be viewed as a company concerned about providing safe food products to U.S. consumers, against the potential legal and regulatory ramifications of releasing potentially damaging documents to the Committee.

We will continue to monitor the Committee's investigation and would be pleased to discuss the implications of this inquiry letter or any other related issues.

Legal News Alert is part of our ongoing commitment to providing up-to-the minute information about pressing concerns or industry issues affecting our food industry clients and colleagues. If you have any questions about this alert or would like to discuss this topic further, please contact your Foley attorney or any of the following individuals: 

Michael D. Flanagan
Milwaukee, Wisconsin

Sarah A. Key
Washington, D.C.

Mark Mansour
Washington, D.C.

David L. Rosen
Washington, D.C.

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