In several past commentaries in this column, I have mentioned the importance of having a formal plan of action in place for handling product recalls. Not having a plan can significantly increase the possibilities of negative press, legal action against your firm, and create public relations nightmares. Having a plan in place and in writing is not only prudent, but just plain smart business.
Last month the Food and Drug Administration (FDA) officially finalized guidance policies to help companies prepare to remove recalled products quickly and effectively from the marketplace. The guidance describes steps businesses should take, before a recall is mandatory, to develop recall policies and procedures that include training, planning and record keeping reducing the time a recalled product is on the market, and thus, limit your and the public’s exposure to risk.
The final FDA guidance, labeled “Initiation of Voluntary Recalls Under 21 CFR Part 7, Subpart C” (sorry for the technical jargon), explains how companies should have adequate product coding systems in place and maintain distribution records to facilitate faster, more accurate recall actions. The FDA also encourages recalling companies to use electronic communications to quickly identify and provide certain product information when alerting consignees and the public about a voluntary recall. Having a thorough comprehension of the overall process for handling recalls is what this final guidance is all about.
For additional information and to back up your own plan for addressing recalls, have your food safety folks call 888.INFO.FDA and you will be connected to a real person (prompt #3). This is one of those business operating issues that one should not put aside to handle at a later time but make sure now that you have dotted all the i’s and crossed all the t’s so that you have written policies in place. Then, and only then, will you be “recall ready”! As the adage goes: “Hope for the best, prepare for the worst.” Playing catch-up is no fun when you are in the middle of a product recall crisis.
Anti-Competitive Behavior?
Last month President Joe Biden gave the annual State of the Union address to Congress and the American public. If you heard his remarks, you may have taken notice when he commented on competition within the meat industry which is not often a topic one finds in an annual State of the Union address. In his comments the president said, “When corporations do not have to compete, their profits go up and your prices go up. Small businesses and family farmers and ranchers – I need not tell some of my Republican friends from those states – guess what? You got four basic meatpacking facilities. That’s it!” Biden then continued, “You play with them, or you do not get to play at all. And you pay a hell of a lot more – a hell of a lot more because there’s only four.” Concluding his comments on the topic, Biden announced “a crackdown” on those companies he said are supposedly overcharging American businesses and consumers.
Well, the president’s words were clearly heard, as the chairman of the house agriculture committee David Scott has just announced that he will host a full committee hearing to determine whether anti-competitive behavior exists within the meat industry. He said, “It is well known that among the four companies that dominate this market, there have been a number of allegations and investigations. It is critical that we find out if industry concentration and anti-competitive behavior is playing a role in inflating prices for consumers and preventing ranchers from receiving a fair price.” The hearings will take place on April 27. How did the meat industry react? The North American Meat Institute said that they have been very open about the issue of competition and will continue to fully cooperate with government agencies so that regulators have a firm understanding of the beef markets. Stay tuned.
From my vantage point, expect even more hearings in 2022 about competition within the food industry, especially with inflation on the rise. You may recall in previous columns that I have mentioned the Department of Justice had announced its intention to “reinvigorate” antitrust law enforcement, and the Department of Agriculture also announced similar steps they will be taking to look at unfair and anticompetitive practices. Is this the dawn of a new era in antitrust enforcement? We at Policy Solutions think it is.
Back To Work At USDA And FDA Could Mean More Oversight
President Biden also referenced in his State of the Union address that he has instructed federal government office workers to begin to return to work after two years of working from home during the pandemic. Our peers in the lobbying and consulting field think that this will mean tighter scrutiny of major business and industry issues as federal employees return to their offices. The rationale is that working from home resulted in a slowdown of regulatory activity. We also expect to see more rule-making activity once the bureaucrats get re-settled in their offices. I can honestly say that in my 45 years of public affairs experience for the retail food industry, the past two years have been noticeably “slow” years on the Hill for the introduction of new laws, regulations and rules impacting the food industry.
More WIC And Food Stamp Customers Coming
The Department of Homeland Security (DHS) is getting ready to formally publish a proposal to amend the federal ‘public charge” rules. These rules, significantly tightened by the former Trump administration, discouraged many immigrants from accessing safety net programs such as the Women Infants and Children Program (WIC) and the Supplemental Nutritional Assistance Program (SNAP). The proposed changes will eventually mean that more low-income shoppers will be using these food assistance programs in retail stores.
Biden previously issued an executive order to eliminate the “public charge” rule on green card applicants’ use of federal assistance programs. Individuals using the programs would be deemed a “public charge” – a potential mark against them as regulators weighed their applications. The new Department of Human Services rule will give greater flexibility for benefit users and eliminate the stigmatism carried by potential users of benefit programs. Advocates supporting the rights of the needy strongly endorsed the administration’s move.
FDA To NOT Enforce Certain FSMA Rules
Food Safety News has reported that the FDA has issued guidance on its intent not to enforce certain provisions of five key rules that are a major part of the Food Safety Modernizations Act (FSMA).
The enactment of FSMA in 2011 granted the FDA more authority to regulate the way foods are grown, harvested, and processed. The law also granted the FDA several additional powers, such as mandatory recall authority. FSMA also required the FDA to undertake more than a dozen rulemaking procedures at issue for a number of major policy guidance documents, as well as a host of reports, plans, strategies, standards, notices, and other tasks necessary to carry out FSMA. Remember, once a major piece of legislation like FSMA is enacted, the bureaucrats must then write a lot of policy documents to carry out the legislation.
Well, as the FDA began implementation of FSMA, it received a slew of questions and comments from a lot of stakeholder groups. Thus the “pause” button had to be pressed so that FDA would have sufficient time to consider policy options. As FDA now works toward seeking final solutions to the comments they received, the agency recently reported that they will not enforce certain provisions in the following critical rules: (1) current good manufacturing practice and hazard analysis and risk-based preventive controls for human food; (2) the same practices for animal food; (3) the foreign supplier verification program; (4) produce safety; and (5) intentional adulteration rules. We will continue to monitor this matter.
Home-Based And Small Food Sellers
We all know the importance of buying and selling locally grown produce and that purchasing produce from local growers has been a huge success. But there has been a significant increase in the number of small entrepreneurs producing products for resale in retail food stores during the pandemic. Data shows 37 percent of more than 92,000 new business ventures registered since March of 2020 are run from “domestic kitchens,” according to the Register A Food Business (RAFB) digital service, which was established to monitor such businesses.
Thus, in the interest of food safety handling systems and techniques, the Food Standards Agency (FSA) is urging all such businesses to register with local health authorities. Retail businesses that purchase products from home-based or related, similar sellers may be putting themselves and consumers at risk because of gaps in food safety including even a lack of allergen knowledge, according to FSA. Failing to register can result in prosecution. Bottom line: if you are purchasing food products from a small producer, make sure the business is adhering to all local and state health department requirements and is duly registered with the proper authorities.
Barry Scher is associated with the public policy firm of Policy Solutions LLC and can be reached at Bscher@Policy.solutions.net.
