Food Stuff: Sex & Drugs & Peanut Butter…Just Another Day for FDA

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Kimberly Egan

Kim Egan, Partner, DLA Piper LLP

Is this too boring?

Every week FDA publishes an “Enforcement Report.”  It describes what has gone wrong in our nation’s supply of food and dietary supplements of late.  It would be entertaining reading if it weren’t so depressing.

This week’s report tells us that trying to work more fish and vegetables into your diet may be hazardous.  For example, one company recalled 3,000 packages of fish sticks because they “might” contain plastic. How do they know they “might” contain plastic without knowing whether they actually do?   Another company recalled 20,000 packages of frozen peas and mixed vegetables because they do contain glass — they are sure about that one.

peanutsSome peanut butter, which President Obama told us Sasha eats every day for lunch, came off the shelves because 169 cases of it “was contaminated with pieces of a blue nitrile plastic disposable glove.”  FDA doesn’t say whether it was one blue nitrile plastic disposable glove scattered in 169 pieces through the peanut butter, or 169 different blue nitrile plastic disposable gloves.  Other peanut butter came back because the bottles didn’t say that the peanut butter contained peanut oil.  It seems pretty obvious to me that peanut butter contains peanut oil, but FDA is very strict about requiring companies to label potential food allergens.  That’s why so many packages of raw peanuts warn us that they “contain peanuts.”

A fish distributor recalled 25 different kinds of fish, including some of the cold-water ocean ones we have been told to eat because they are full of Omega-3 fatty acids.  These 25 different kinds of fish — herring, whitefish, turbot, sea bass, paddlefish, trout, butterfish, and numerous “smoked” species — are infected with listeria.  How much of it is in commerce?  Unfortunately, no one seems to know.

There are also problems out there for folks who are trying to get healthy by incorporating more “human companionship” into their lifestyles.  I didn’t realize this before but until recently men have been able to buy a dietary supplement that promises “Ridiculous Performance” and another that says something about “Natural Male Explosions.”  FDA has gone after 10,000 bottles of this stuff.  Why?  They aren’t really dietary supplements.  They are drugs.  The ridiculous performance and natural explosions are the result of something almost identical to the active ingredient in Viagra.   FDA requires the real Viagra label to discuss a “sudden decrease or loss of vision” as well as “a sudden, unsafe drop in blood pressure.”  The Ridiculous Performance and Natural Male Explosions labels presumably did not say any of that.

Pulling up the rear are 3,000 packages of chow mein that smell bad.  That seems a little subjective and culturally insensitive to me.  Who’s to say your smelly chow mein isn’t ambrosia to me?

It certainly is fun to read the weekly food enforcement report but what strikes me about it is that we have all this recall activity even though FDA does not have the power to actually force a recall of anything.  The food safety bill that has been waiting in the wings for almost two years could give FDA the power to recall.  Some say it’s sorely needed.  Some say this weekly enforcement report shows that it’s really not.  Perhaps the Tea Party will clear this up, now that it has a lawmaker or two heading to Washington.


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