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Federal law gags FDA on recall as vaccination window closes

Tuesday, November 8, 2016 23:18
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County and state health departments continue to dribble out details on restaurants, schools and other foodservice operations that received and served frozen strawberries from Egypt that are under recall for Hepatitis A contamination as time runs out for potential victims to receive post-exposure vaccinations.

The post-exposure prophylaxis (PEP) must be administered within two weeks or it is not effective, according to the Centers for Disease Control and Prevention. An ongoing outbreak traced to the strawberries has sickened 134 people in nine states.

It has been nearly impossible for potential victims to receive the post-exposure vaccine because a comprehensive list of where the strawberries were served is not available to the public.

Food and Drug Administration officials are gagged when it comes to revealing distribution lists for recalled foods by clauses in federal code designed to protect corporations.

The Egyptian strawberry producer recalled the frozen strawberries between Oct. 25 and Oct. 30, based on varying reports from corporate and government sources. The frozen berries have been served as recently as Nov. 1, according to Wyoming officials, a day after the strawberry recall notice was posted on the FDA’s website.

Because federal law protects “confidential corporate information,” the FDA could only name the five foodservice distributors that sent the potentially contaminated berries to restaurants, schools, hospitals, hotels and other operations. The distributors have not revealed their customer lists.

Public health officials in some areas have been scrambling to find out where the frozen strawberries went so they can alert the public about the potential danger and how to obtain post-exposure vaccines.

Wyoming and Texas joined their counterparts California, Michigan and Colorado in posting public health alerts about the frozen strawberries from Egypt’s International Company for Agricultural Production and Processing (ICAPP).

USDA gag removed years ago
Similar situations with recalls under the jurisdiction of the USDA’s Food Service and Inspection Service led to a change almost 10 years ago that removed the distribution list gag from hat agency. FSIS now routinely posts lists of retail locations that received meat or poultry products that are recalled.

The change was partly in response to efforts of the Safe Food Coalition. Active since 1993, the coalition includes the Center for Science in the Public Interest, Consumer Federation of America, Consumers Union, Food and Water Watch, National Consumers League, the Center for Foodborne Illness Research and Prevention, STOP Foodborne Illness, and the Government Accountability Project.

Coalition representatives worked through the federal rulemaking process along with USDA staff to effect the change, which was published in the Federal Register on July 17, 2008, and went into effect on Aug. 8 that year.

“Some industry commenters opposing the proposal stated that retail consignee information is protected from mandatory public disclosure by Exemption 4 of the (Freedom of Information Act) FOIA because it is confidential business or commercial information, and the potential value of this information would not outweigh the competitive harm that would be caused by its release. They pointed out that FSIS has traditionally treated a company’s distribution list as confidential business information,” according to the Federal Register notice.

“… In considering the application of Exemption 4, (the agency) has determined that the names and locations of retail consignees of recalled meat and poultry products compiled by the agency do not constitute confidential commercial information because the disclosure of this information will not impair the agency’s ability to obtain necessary information in the future and will not cause substantial harm to the competitive position of any business.”

Even with the new rule in place, the USDA’s Food Safety and Inspection Service does not actually publish a corporation’s distribution list. Instead, agency staff must spend time to compile lists for publication.

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