Steven Kramer, attorney with Eckert Seamans Mellott & Cherin, specializes in defending companies in the area of foodborne illness litigation. His experience in serving distributors, retailers, importers, and other food-focused firms has imparted the counsellor with insight of the various legal and technical issues facing stakeholders all up and down the supply chain.
Kramer spoke with FoodProductionDaily about his experience aiding clients facing foodborne pathogen woes, and how firms can avoid major headaches.
What are some common missteps food producers make when it comes to foodborne pathogens?
Prevention requires focused safety discipline; too often, the safety plan is a good one but is not rigorously followed. If you think about, producers know their products better than anyone and they know the likely pathogen entry points—it’s the follow-through on the hazard risk analysis that sometimes gets missed.
Another issue (and it’s a big one) is supplier control—many recalls are directed related to lack of supplier control; the FDA calculated almost 37%. Producers have to know what is happening at the supplier level. The misstep I have seen is being passive about supplier control.
As far as response, there is the old litigation adage a bad case does not get better with time, and that's true in pathogen response. The mistake I have sometimes seen is a producer being purely reactive to events, instead of getting control of the events--whether it’s prevention or response, being proactive is key.
What are the most important points of FSMA food producers should educate themselves on?
First, the FDA’s powers have been greatly expanded; there is more "teeth" to the FDA now.
That leads to a second point—the FSMA regulations have still not been finalized, so producers should send in comments. A lot of producers big and small have commented in order to try to control their business. As far as technical issues, the one that jumped out to me in the FDA draft regulations is supplier control.
Importers need to educate themselves about that because the FDA itself noted "for the first time, importers will be specifically required to have a program to verify the food products they are bringing into the country are safe."
What are some resources food firms can turn to, to learn more about food borne pathogens and minimizing risk?
The FDAs website is actually pretty good; and it’s a good starting point.
Could you please an example of a case in which foodborne illness reared its ugly head?
One food company had a very good food processing plan—there should have been no problems; the plan was really good. There was so much heat applied, and yet, pathogens were ultimately found in the finished product.
Working backwards, it turned out the problem was at a different company's packaging plant. That's my point about supplier control.