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On March 30, 2011, I reported on an outbreak of Salmonella Panama that eventually sickened – when all the dust settled – 20 people in 10 states. Twelve victims (out of 16 interviewed) reported eating cantaloupe in the week before they became ill. Eleven of the twelve purchased their cantaloupes from eight different Costco locations.

The melons implicated during the outbreak investigation were supplied to Costco by Del Monte Fresh Produce, and were grown on a single farm in Guatemala. But the outbreak strain never was recovered from the implicated cantaloupes.

By the time the outbreak was detected and the probable source of the infections determined by the federal and state epidemiologists (through patient interviews and product traceback investigations), the implicated cantaloupes had passed their useable shelf life and were no longer on the market. Nevertheless, Del Monte Fresh Produce decided to recall the remaining stock of Guatemalan cantaloupes that it had supplied to Costco in states where outbreak cases has been confirmed.

In addition to the recall action, the FDA issued an Import Alert (#22-03), authorizing its District Offices to “…detain, without physical examination, all raw fresh and raw fresh refrigerated cantaloupes, frozen and processed cantaloupe, including fresh-cut cantaloupe (i.e., sliced/chopped), offered for importation that appear to originate from …” Asuncion Mita, the Guatemalan farm that grew the implicated melons.

At the time of the recall, Del Monte Fresh Produce chose to cooperate with FDA. Now, however, the company has had second thoughts. On August 22, 2011, Del Monte filed a lawsuit against the FDA, claiming that the federal agency had “…imposed harmful restrictions on Del Monte’s importation of cantaloupes from a major source in Guatemala, based upon an erroneous speculative assumption, unsupported by evidence, that cantaloupes previously imported from that source were contaminated with the pathogen Salmonella.” The lawsuit asks the Court to issue “…declaratory judgment holding that FDA’s actions restricting importation are unlawful, set aside the actions, and issue a permanent injunction prohibiting FDA from enforcing or effectuating them in the future.”

And that’s not all. Del Monte also has notified the state of Oregon that the company intends to file suit against the state’s Department of Public Health and its senior epidemiologist, Dr. Bill Keene, who played a major role in the outbreak investigation.

This is the first time that I can remember that a food company has sued FDA over a regulatory decision such as an Import Alert or a recall recommendation. If this case goes forward – even if it is ultimately decided in favor of FDA – I strongly fear that the agency will be more timid in future when faced with potentially controversial recall recommendations.

I know what Del Monte Fresh Produce thinks – that’s clear from their Court filing.

I know what food poisoning attorney and blogger Bill Marler thinks – that’s eminently clear from his blogs on the subject since the lawsuit was filed on August 22nd.

But, I want to know what my readers think. Here’s your chance to have your say. Just answer the two poll questions below, and add any comments you care to in the comments field at the bottom of this post.


I look forward eagerly to reading your replies.

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