PRIA, Government Policy, Made Personal

Summary

The Secretary (the head of the food agency) can order a company to stop selling and recall a food if the agency finds a reasonable chance the food (except infant formula) is contaminated or mislabeled and could cause serious harm or death. The company must be given a chance to voluntarily stop and recall first. If it refuses, the Secretary can order an immediate stop and require the company to tell everyone in the supply chain to stop selling. If the product went to a warehouse-based third-party logistics provider without enough ID, the company must give the warehouse the information needed to identify it. The Secretary can limit the area affected if that won’t harm public health. The company must be offered an informal hearing no later than 2 days after the order. After the hearing, the Secretary can order a full recall, set a timetable, require progress reports, and notify consumers, or cancel or change the order. For alcoholic beverages, the Secretary must give the Alcohol and Tobacco Tax and Trade Bureau a reasonable chance to act first. The Secretary must work with state and local officials, issue press releases and alerts naming the product and the risk, include, if possible, pictures and info about similar safe products, and may provide retail lists. Only the Commissioner may be given the power to sign or cancel these recall orders. An incident command operation must start within 24 hours of a mandatory recall to coordinate communications and pick a single public contact; more than one command can be used if needed.

Title 21, §350l

Food and Drugs, Source: USLM XML via OLRC

(a)Voluntary procedures

If the Secretary determines, based on information gathered through the reportable food registry under section 350f of this title or through any other means, that there is a reasonable probability that an article of food (other than infant formula) is adulterated under section 342 of this title or misbranded under section 343(w) of this title and the use of or exposure to such article will cause serious adverse health consequences or death to humans or animals, the Secretary shall provide the responsible party (as defined in section 350f of this title) with an opportunity to cease distribution and recall such article.

(b)Prehearing order to cease distribution and give notice

(1)In general

If the responsible party refuses to or does not voluntarily cease distribution or recall such article within the time and in the manner prescribed by the Secretary (if so prescribed), the Secretary may, by order require, as the Secretary deems necessary, such person to—

(A)immediately cease distribution of such article; and

(B)as applicable, immediately notify all persons—

(i)manufacturing, processing, packing, transporting, distributing, receiving, holding, or importing and selling such article; and

(ii)to which such article has been distributed, transported, or sold, to immediately cease distribution of such article.

(2)Required additional information

(A)In general

If an article of food covered by a recall order issued under paragraph (1)(B) has been distributed to a warehouse-based third party logistics provider without providing such provider sufficient information to know or reasonably determine the precise identity of the article of food covered by a recall order that is in its possession, the notice provided by the responsible party subject to the order issued under paragraph (1)(B) shall include such information as is necessary for the warehouse-based third party logistics provider to identify the food.

(B)Rules of construction

Nothing in this paragraph shall be construed—

(i)to exempt a warehouse-based third party logistics provider from the requirements of this chapter, including the requirements in this section and section 350c of this title; or

(ii)to exempt a warehouse-based third party logistics provider from being the subject of a mandatory recall order.

(3)Determination to limit areas affected

If the Secretary requires a responsible party to cease distribution under paragraph (1)(A) of an article of food identified in subsection (a), the Secretary may limit the size of the geographic area and the markets affected by such cessation if such limitation would not compromise the public health.

(c)Hearing on order

The Secretary shall provide the responsible party subject to an order under subsection (b) with an opportunity for an informal hearing, to be held as soon as possible, but not later than 2 days after the issuance of the order, on the actions required by the order and on why the article that is the subject of the order should not be recalled.

(d)Post-hearing recall order and modification of order

(1)Amendment of order

If, after providing opportunity for an informal hearing under subsection (c), the Secretary determines that removal of the article from commerce is necessary, the Secretary shall, as appropriate—

(A)amend the order to require recall of such article or other appropriate action;

(B)specify a timetable in which the recall shall occur;

(C)require periodic reports to the Secretary describing the progress of the recall; and

(D)provide notice to consumers to whom such article was, or may have been, distributed.

(2)Vacating of order

If, after such hearing, the Secretary determines that adequate grounds do not exist to continue the actions required by the order, or that such actions should be modified, the Secretary shall vacate the order or modify the order.

(e)Rule regarding alcoholic beverages

The Secretary shall not initiate a mandatory recall or take any other action under this section with respect to any alcohol beverage until the Secretary has provided the Alcohol and Tobacco Tax and Trade Bureau with a reasonable opportunity to cease distribution and recall such article under the Alcohol and Tobacco Tax and Trade Bureau authority.

(f)Cooperation and consultation

The Secretary shall work with State and local public health officials in carrying out this section, as appropriate.

(g)Public notification

In conducting a recall under this section, the Secretary shall—

(1)ensure that a press release is published regarding the recall, as well as alerts and public notices, as appropriate, in order to provide notification—

(A)of the recall to consumers and retailers to whom such article was, or may have been, distributed; and

(B)that includes, at a minimum—

(i)the name of the article of food subject to the recall;

(ii)a description of the risk associated with such article; and

(iii)to the extent practicable, information for consumers about similar articles of food that are not affected by the recall;

(2)consult the policies of the Department of Agriculture regarding providing to the public a list of retail consignees receiving products involved in a Class I recall and shall consider providing such a list to the public, as determined appropriate by the Secretary; and

(3)if available, publish on the Internet Web site of the Food and Drug Administration an image of the article that is the subject of the press release described in (1).

(h)No delegation

The authority conferred by this section to order a recall or vacate a recall order shall not be delegated to any officer or employee other than the Commissioner.

(i)Effect

Nothing in this section shall affect the authority of the Secretary to request or participate in a voluntary recall, or to issue an order to cease distribution or to recall under any other provision of this chapter or under the Public Health Service Act [42 U.S.C. 201 et seq.].

(j)Coordinated communication

(1)In general

To assist in carrying out the requirements of this subsection, the Secretary shall establish an incident command operation or a similar operation within the Department of Health and Human Services that will operate not later than 24 hours after the initiation of a mandatory recall or the recall of an article of food for which the use of, or exposure to, such article will cause serious adverse health consequences or death to humans or animals.

(2)Requirements

To reduce the potential for miscommunication during recalls or regarding investigations of a food borne illness outbreak associated with a food that is subject to a recall, each incident command operation or similar operation under paragraph (1) shall use regular staff and resources of the Department of Health and Human Services to—

(A)ensure timely and coordinated communication within the Department, including enhanced communication and coordination between different agencies and organizations within the Department;

(B)ensure timely and coordinated communication from the Department, including public statements, throughout the duration of the investigation and related foodborne illness outbreak;

(C)identify a single point of contact within the Department for public inquiries regarding any actions by the Secretary related to a recall;

(D)coordinate with Federal, State, local, and tribal authorities, as appropriate, that have responsibilities related to the recall of a food or a foodborne illness outbreak associated with a food that is subject to the recall, including notification of the Secretary of Agriculture and the Secretary of Education in the event such recalled food is a commodity intended for use in a child nutrition program (as identified in section 1769f(b) of title 42); and

(E)conclude operations at such time as the Secretary determines appropriate.

(3)Multiple recalls

The Secretary may establish multiple or concurrent incident command operations or similar operations in the event of multiple recalls or foodborne illness outbreaks necessitating such action by the Department of Health and Human Services.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Public Health Service Act, referred to in subsec. (i), is act July 1, 1944, ch. 373, 58 Stat. 682, which is classified generally to chapter 6A (§ 201 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see

Short Title

note set out under section 201 of Title 42 and Tables.

Statutory Notes and Related Subsidiaries

Construction

Nothing in this section to be construed to alter jurisdiction and authorities established under certain other Acts or in a manner inconsistent with international agreements to which the United States is a party, see section 2251 and 2252 of this title. Search Engine Pub. L. 111–353, title II, § 206(b), Jan. 4, 2011, 124 Stat. 3942, provided that: “Not later than 90 days after the date of enactment of this Act [Jan. 4, 2011], the Secretary shall modify the Internet Web site of the Food and Drug Administration to include a search engine that— “(1) is consumer-friendly, as determined by the Secretary; and “(2) provides a means by which an individual may locate relevant information regarding each article of food subject to a recall under section 423 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 350l] and the status of such recall (such as whether a recall is ongoing or has been completed).”

§350l Mandatory Recall Authority