In an astonishing display of what can only be described as chutzpah* Del Monte sued the FDA for insisting on a recall last March of its cantaloupes likely to be contaminated with a toxic form of Salmonella Panama. Now Del Monte is also suing the State of Oregon.
On what grounds?
Notably, “[t]he FDA investigation ultimately found no connection between Del Monte Fresh cantaloupes and any cases of Salmonella Panama, including in Oregon,” the company says. “FDA issued a notice ending the recall on July 29, 2011.”
The CDC thinks otherwise. Its investigations pointed to imported Del Monte cantaloupes as the source of an outbreak that affected 20 people in several states:
Twelve of 16 ill people reported eating cantaloupe in the week before illness. Eleven of these 12 ill people ate cantaloupes purchased at eight different locations of a national warehouse club. Information gathered with patient permission from membership card records helped determine that ill persons purchased cantaloupes sourced from a single farm. Product traceback information indicated these cantaloupes were harvested from single farm in Guatemala.
FoodSafetyNews reviews the history of this particular recall. It agrees with Del Monte that tests performed in April on cantaloupe samples from the Guatemala farm came out negative for Salmonella and that the FDA has now ended the recall. But:
Del Monte had announced the recall in March, after the suspect melons had passed their shelf-life date. It is not clear whether any of the cantaloupes tested were actually the suspect melons. In foodborne illness investigations, samples of the food from the same batch eaten may no longer available by the time the connection to an outbreak is made. Epidemiology, rather than a contaminated sample, is the evidence that points to a likely source.
For these reasons, attorney Bill Marler terms the lawsuit “frivolous.” He is suing Del Monte on behalf of a sick client.
Public health agencies doing their jobs to protect the public now have to defend against lawsuits like this? Putative cause is no longer enough to order recalls?
U.S. courts are not famous for understanding epidemiology or other aspects of public health and I’m wondering what effect this suit will have on public protection against foodborne illness. What standard of proof will the courts require?
Lawsuits are chilling. Congress has just granted the FDA the authority to order recalls. Food producers were not happy about that provision. This is one way to get around Congress and the FDA.
It is worth asking who gains and who loses from lawsuits like this.
*Hence: chutzpah, which if you aren’t familiar with the term, is the Yiddish word for outrageous audacity.