I Notified The Consumer, But Have I Done Enough?

Every year, millions of people in the United States develop foodborne illnesses. To help alleviate this issue, President Barack Obama signed the Food and Drug Administration (“FDA”) Food Safety Modernization Act (“FSMA”) into law on January 4, 2011.  This law sets forth specific requirements for grocery retailers to adhere to when notifying consumers of food recalls.  Through these requirements, the FSMA has made it easier for grocery retailers to communicate food recalls to consumers in the most effective manners.

When a food item is recalled, the responsible party, usually the manufacturer of the product, is required by the FSMA to provide the FDA with “consumer-oriented information” regarding the recalled item. Consumer-oriented information must include: “(1) a description of the food item; (2) identification codes for the affected food item such as a Universal Product Code (UPC), Stock Keeping Unit (SKU), or lot or batch numbers to help the consumer identify the food item; (3) the responsible party’s contact information; and (4) any other information deemed necessary by the FDA to help consumers identify the affected food item.”  When the FDA receives this information from the responsible party, the FSMA requires the FDA to post the information to its website in a one-page summary that can be printed by grocery retailers to alert consumers.

Within twenty-four (24) hours after the summaries are posted to the FDA’s website, grocery retailers who sold the affected food items, and have more than fifteen (15) physical locations, are required to print the summaries and post them in a “conspicuous location and manner.” The summaries are to remain posted by the grocery retailer for fourteen (14) days thereafter.  Conspicuous locations and manners include: “Posting notification of the recall at or near the register; (2) providing the location of the reportable food; (3) providing targeted recall information given to customers upon purchase of the food; and (4) other such prominent and conspicuous locations and manners utilized by grocery stores as of the date of the enactment of the FSMA to provide notice of such recalls to consumers as considered by the Secretary of Health and Human Services.”

In addition to complying with the requirements mandated by the FSMA, grocery retailers can take further steps to ensure that they are properly notifying consumers of recalls in the most effective manners. Grocers can begin by implementing plans of action within their stores for removing recalled items from their shelves and alerting consumers of the recalls.  Providing training for employees for handling recalls can help reduce grocers’ liabilities during recalls, and it can also help improve consumer safety.  Additionally, grocers should take steps to ensure that their legal teams remain knowledgeable of new laws and regulations that may require changes in the grocers’ current policies and procedures related to recalled products.

For more information on the FSMA, please visit fda.gov.