IRVINGTON, N.J. — Westco Fruit and Nuts (Westco/Westcott) here cooperated with authorities and allowed its distribution records to be accessed after an inspection warrant was executed by U.S. Marshals earlier this month.
The warrant was obtained after Westco/Westcott declined a formal U.S. Food and Drug Administration request issued on March 23 to recall Oil Roasted Salted Redskin Jumbo Peanuts that it sourced from Peanut Corp. of America, Blakely, Ga., due to the risk of Salmonella contamination. Westco/Westcott likewise declined a request to access distribution records related to the products. Although the FDA doesn't have the authority to compel companies to recall food, regulated companies are required by law to grant FDA entry for inspection, and provide access to distribution records.
“Assuming the documents enable us to do so, FDA will identify the firm's customers and notify them concerning their possible receipt of Westco products that contain peanuts recalled by PCA,” FDA spokesman Sebastian Cianci told SN.
These items were likely distributed prior to Feb. 9, when the state of New Jersey exercised its authority to embargo Westco/Westcott products to prevent further distribution.
Formal FDA requests for recall are rare since companies almost always voluntarily recall suspect products. And in circumstances when a formal request is made, companies usually comply.
“There have been no other instances in recent years when a firm has refused to recall its food products subsequent to an FDA-requested recall,” Cianci said.
Westco/Westcott declined SN's request for comment, but owner Jacob Moradi told ABC News that he decided not to recall product since he had the nuts tested at an FDA-approved lab and they all came back negative for contamination. He contends that a recall would be too financially damaging.
“They are asking me to commit suicide based on presumption,” Moradi told ABC News. “They have shown no proof. We have begged them. They have no proof that anyone got sick from eating whole redskin peanuts roasted in oil.”
The FDA has no reports of illnesses or death associated with consumption of Westco/Westcott products. It urged consumers on March 23 to check their homes for peanut-derived products made by or distributed by Westco/Westcott.
It's not surprising that companies are suspicious of federal authorities.
Last year, mistakes made by the U.S. Centers for Disease Control and Prevention and the FDA cost the tomato industry about $250 million.
In June, the CDC used epidemiological evidence to link dozens of cases of the Salmonella Saintpaul strain to tomato consumption. The FDA warned consumers nationwide not to eat raw roma or round red tomatoes, and products were pulled from shelves. Despite its action, illnesses continued.
By July, 900 people in 36 states contracted the strain and the search began to include produce commonly eaten with raw tomatoes, like peppers and cilantro.
On July 30, the FDA announced that the culprit was contaminated irrigation water at a pepper farm in Mexico, but the damage to the tomato industry had already been done.
Although Moradi is trying to avoid financial loss, by refusing to recall product, Westco/Westcott is exposing itself to punitive liability, according to Bill Marler, a personal injury attorney with Marler Clark, Seattle.
“Anytime you put into the market or keep on the market a product that you know is contaminated or potentially contaminated, and that product sickens somebody, you're not just subject to compensatory damages for the illness, but you can be punished for knowingly selling a contaminated product,” Marler said.
If someone ends up getting sick from a Westco/Westcott distributed product, the company could end up having to pay millions in punitive damages, Marler added.
If passed, the FDA Food Safety Modernization Act and the Safe FEAST Act (Safe Food Enforcement, Assessment, Standards and Targeting Act of 2009) — would give the FDA authority to mandate food recalls. The action would allow for due process in the form of an informal administrative hearing that would take place no later than two days after the issuance of an order to recall.