Rubber in popcorn chicken…hard plastic in ground beef…wood in chicken nuggets – conventional and organic. There certainly seems to be a lot of large recalls for foreign material in meat recently – particularly in poultry. Unfortunately, it’s not new either. According the Stericycle quarterly report, foreign material caused the highest percentage of USDA recalls in the second quarter of 2018. Thankfully, in each of the above-listed cases, the problem was discovered through consumer complaints, but no confirmed reports of adverse reactions due to consumption were reported…. But there easily could have been. And the issue would have been thoroughly investigated and traced back just like that of a foodborne illness or allergenic reaction with the causative provider held liable – with all those along its supply chain potentially added to the liability. The rubber, hard plastic, and wood are particularly concerning because of their non-natural aspects. That is, according to a QA Magazine article citing Gentry-Locke Attorney E. Scott Austin who represented former PCA owner/CEO Stewart Parnell in the criminal case on the 2008-09 Salmonella outbreak, although state laws vary, in Virginia (and from our research, in many states) food providers are not likely to be held legally liable for naturally occurring foreign matter (e.g., bone in hamburger) – if steps are being taken for prevention. That’s not to say a consumer won’t make a claim, which we discuss further below. Non-natural foreign objects (e.g., rubber, plastic, wood, etc.) are a different matter. As the article states, “It’s not supposed to be there; it’s irresponsible of the food producer for it to be there; and no consumer would expect it to be there. In such instances, Austin said, ‘You are strictly liable.’” The distinction is based primarily on the concept of “reasonably foreseeable.” Similar to that of the industry’s responsibility to distinguish ready-to-eat foods, but this concept lies with the consumer understanding that it’s reasonably foreseeable that matter natural to the food could be found in the final product. So while it’s generally more difficult for a consumer to win a lawsuit for a natural object, do you really want to even be involved in a lawsuit? Few companies would want the publicity that goes along with such cases, so most will settle with an injured upon receipt of a complaint, and some have insurance for such incidents. Additionally, a factor in any case is that of having taken preventive action. Just as companies – and executives – are held to higher liability and consequences for foodborne illness outbreaks when it is proven that they knew, or should have known, of issues (e.g., PCA, the UK restaurant, etc.), so too would such companies and executives be held to higher liability and consequences in foreign matter incidents. While food safety is often thought of as preventing foodborne illness, it is just as applicable to preventing foreign object harm. Whether you produce meat, poultry, organic, vegetarian, non-GMO, or any other food product, it is imperative to understand – and prevent – both the natural and non-natural matter that could get into your product. Do you regularly tighten all bolts and check for wear on your equipment – to prevent metal or rubber intrusion? Do your incoming goods go through appropriate inspection to keep foreign matter from moving on down the line? Do your suppliers use wooden pallets for delivery? Is your beef sufficiently deboned and ground to prevent bone fragments? Are your metal detectors, x-ray or vision machines correctly calibrated for each product? And, if you’re a restaurant or direct provider – are your suppliers held to strict programs, your equipment well-maintained, and your workers trained on foreign object prevention? Are your food safety preventive controls as geared for foreign objects as they are for pathogens? If any of your foreign object polices are found to be lacking, or you receive a consumer complaint, do you have practices and policies in place for further foreign matter inspection, lot determination, and assessment of the public health risk created by the foreign material? The latter can be very important in relation to small fragments and whether you feel you are in a recall mode and, if so, to what level. If you have any question as to the adequacy of your systems and processes, you could be setting yourself up for a massive recall – or worse. So, if you’ve not reassessed your program recently, now could be a good time to do so. Whether you’re seeking to review or improve your preventive controls or want to ensure your crisis management practices are up to par, TAG can help. Contact us today. About The Acheson Group (TAG) Led by Former FDA Associate Commissioner for Foods Dr. David Acheson, TAG is a food safety consulting group that provides guidance and expertise worldwide for companies throughout the food supply chain. With in-depth industry knowledge combined with real-world experience, TAG’s team of food safety experts help companies more effectively mitigate risk, improve operational efficiencies, and ensure regulatory and standards compliance. www.AchesonGroup.com
