Law Firm Predicts Rise in Food Recalls with FSMA

By Mike Rozembajgier

A recent Food Navigator-USA article offers some interesting predictions and comments about the Food Safety and Modernization Act of 2010 (FSMA), from the law firm Covington & Burling LLP, including their  forecast of an increase in recall activity in the food industry. Although the Food and Drug Administration (FDA) already has the ability to force a recall by publishing warnings and working with U.S. Marshals to seize potentially unsafe products, Covington suggests that a shift in policy could identify more weak links in the food supply chain and expose the food industry to increased recall risk.

The article points out that under the FSMA, the FDA now “aims to ensure the U.S. food supply is safe by shifting the focus of federal regulators from responding to contamination to preventing it.” This shift in focus from reactive oversight to proactive prevention will require more frequent inspections of food facilities. Facilities deemed high-risk will be inspected once in the first five years and every three years from then on. Facilities deemed low-risk will be inspected at least once during the first seven years and again every five years.

The FDA will also inspect 600 foreign facilities this year, and is required to double that number in each of the next five years.

As law firms such as Covington get ready for what’s next with the FSMA, companies directly involved in the production and processing of food should heed the firm’s warnings about the coming escalation in recall activity.

With the FDA increasing its oversight of the food industry, it is critical that companies prepare for significant changes in the regulations. For example, Covington notes that it is important that companies read through insurance policies, especially provisions concerning product liability. Current policies may not cover recall costs and may need to be updated with special product recall policies. Food suppliers should also work to ensure impeccable record keeping. The FDA now has increased authority to access records related to food products or ingredients that the agency believes might be adulterated or pose a health risk.

Companies that do not already have a risk management program in place should be working to implement a comprehensive plan that ensures their standards meet new FDA regulatory requirements. Those that already have a program in place should still take a look to make sure they are fully prepared in the event of a product recall.

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