As allowed by the Food Safety Modernization Act, the Food and Drug Administration is considering a policy of releasing the names of retailers who have products involved in outbreaks that could result in illness or deaths.
The FDA has already tested the practice, for a fresh-cut cantaloupe, honeydew and watermelon recall linked to salmonella cases this year, releasing hundreds of locations in 23 states who received the products.
In a draft guidance document released Sept. 26, the FDA said it will seek comments on the practice to gauge support for the policy. Comments are due 60 days after publication in the Federal Register; the notice had not been published as of Sept. 26.
In the draft notice, the FDA said it won’t be able to list retailers in some cases because doing so would divulge “confidential commercial information” that’s protected by laws. The FDA said it has to rely on third-party information from retailers and distributors in the supply chain, making the accuracy or completeness of a retail list unverifiable, and that it might be both “over and under conclusive.”
The main criteria guiding the FDA on whether to release a list of retailers, according to the draft guidance, focuses on two points:
- The food is not easily identifiable as being subject to a recall from its retail packaging (or lack of packaging;
- The food is likely to be still available for consumption.
According to the FDA, that includes fresh fruits and vegetables sold individually.
Even if the two criteria are not met, the FDA would consider listing the retailers if doing so would be of “most use to consumers,” especially when there’s a foodborne illness outbreak.
It’s unlikely the policy would have affected the FDA’s response in the case of two recent E. coli outbreaks linked to leafy greens and chopped romaine.
In the first case, investigators said “leafy greens” was the cause, but it was not narrowed down to the variety.
In the second case, the FDA reported the romaine came from Yuma, Ariz. Consumer bags of salad do not list the state of origin, and no specific brand was named, so it’s unlikely the FDA and suppliers would be able to pinpoint retailers who carried the specific product.
“FDA believes that providing retail consignee information for these recalls is especially important to enable consumers to identify recalled foods,” according to the notice. “It will also improve the efficiency of recalls by helping consumers to identify and focus on the foods that are recalled.”
But there are cases when listing retailers could undermine a public health warning, for example, “if FDA has warned the public to avoid a specific food commodity in generally, and there has only been a limited recall of this food,” according to the draft guidance.
That example is similar to the 2008 salmonella outbreak that was initially associated with tomatoes. Although the FDA issued a “consumer advisory” on avoiding tomatoes, there was no recall. The outbreak was later traced to peppers from Mexico.
In late December, FDA Commissioner Scott Gottlieb said the agency would release new guidelines in 2018 that are designed to get recall information to consumers faster, working with retailers and suppliers to do so.
"But often the fastest and most efficient way to ensure unsafe foods are recalled quickly is by working directly with the involved companies while simultaneously providing the accurate information that (consumers) can act upon," Gottlieb said in an FDA release at the time.