At EFLA’s Third EU-US Food Law Conference, An Invigorating Discussion of International Recalls

By Ricardo Carvajal –

This past Monday, the European Food Law Association held its third conference on developments in food law in the EU and US.  The conference was devoted entirely to the subject of food recalls and related public alerts, and the significant impact that such actions can have on a company’s bottom line and its reputation.

Although many similarities were observed in how recalls are defined and carried out in different jurisdictions, there are sufficient differences to render unsound any presumption that the course of a recall in one jurisdiction is predictive of how the recall will unfold in a different jurisdiction.  Further, requirements vary by jurisdiction with respect to notification of regulatory authorities and the issuance of public notices – critical events in the conduct of a recall.

Much discussion was devoted to the EU’s rapid alert system, to which participating countries are required to submit notice of a recall under specified circumstances.  Although the US is not a direct participant in that system, FDA procedures call for notification of Class I recalls to other jurisdictions, and the agency participates in the WHO’s INFOSAN.  The internationalization of recall notifications or alerts can help limit any potential danger to public health associated with a contaminated food that is distributed in different jurisdictions, but can also significantly aggravate economic harm when “mistakes are made.”  Notably, very few jurisdictions provide a viable means for recovery of damages arising from erroneous alerts issued by public health authorities.

As globalization of the food supply proceeds, the continuing internalization of recalls is inevitable.  Companies that are not properly prepared to evaluate and respond to potential recall situations in all of the jurisdictions in which they operate could increasingly find themselves sustaining significant – and in some cases, irreparable – harm.